1986

MINOS PANEL BEATERS LTD v B. CHAPASUKA (1986) Z.R. 1 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, JJS
11TH DECEMBER, 1985 AND 11TH MARCH, 1986
(S.C.Z. JUDGMENT No. 1 OF 1986)

Flynote

Landlord and Tenant - Application for new tenancy - Tenant served with a notice to quit -
Eligibility to apply for new tenancy.
Landlord and Tenant - "Term of years certain " - Meaning of

Headnote

The appellant was for a long time a tenant of the respondent's business premises. The
tenancy agreement being for a monthly tenancy. The landlord served a notice to quit. The
appellant applied to the High Court for a grant of new tenancy. The High Court refused the
grant on the grounds that the tenancy, was not for a "term of years certain", and that the
tenant having been served with a notice to quit, had no right to apply for a new tenancy.

Held:
(i) A monthly tenancy is a tenancy for a term of years certain
(ii) Section 4 of the Landlord and Tenant (Business Premises) Act specifically provides
that a tenant who has been served with a notice to quit may apply to the court for a
new tenancy. Section 6 does not refer to such a case.

Cases referred to
(1) Musingah v Daka (1974) Z.R. 37
(2) S. J. Patel (Zambia) Ltd. v Bancroft Pharmaceuticals Ltd. (1974) Z.R. 270
(3) Lusaka Auctioneers & Estate Agents Ltd. v Morton Estates Limited (1977) Z.R. 92

Legislation referred to:

Landlord and Tenant (Business Premises) Act Cap. 440 ss. 3 (2) (g) (ii)

For the appellant: G. Kunda, Messrs Cave Malik & Co.

For the respondent: H. Mbushi, City Chambers

Judgment

NGULUBE, D.C.J.: delivered the judgment of the court.

On 11th December, 1985, we allowed this appeal, reversed the judgment appealed against
and entered judgment for the appellant. We ordered the grant of a new tenancy for a period
of two years with effect from 11th December, 1985, as agreed between the parties. We said
then that our detailed judgment containing the reasons for the decision would be delivered
later and this we now do.1

This is an appeal against the refusal by the High Court to grant a new tenancy to the
appellant on their application for one under section 4 (1) (a) of the Landlord and Tenant
(Business Premises) Act, cap. 440 (hereinafter called the Act). The appellant was a tenant
since 1972 of the business premises in issue which were held of the respondent, their
landlord. It was not in dispute that at the time of the events leading to this litigation and at
all material times the appellant held a periodic tenancy from month to month. The landlord
served a notice to quit under section 5 of the Act, stating that he would oppose the grant of
a new tenancy on the ground specified under section 11 (1) (f) of the Act in that he
intended to demolish and reconstruct the premises into a hotel. The tenant duly applied to
the court under section 4 for a new tenancy and the landlord's opposition to the application
based on section 11 (1) (f) was unsuccessful. Despite the failure to oppose successfully
judgment was entered for the landlord on two grounds: The first was that the monthly
tenancy was not one for a term of years certain in terms of the definition of the word
"tenancy" in section 2 of the Act and was therefore not a tenancy protected by the Act. The
second was that a tenant cannot apply to the court for a new tenancy after the landlord
has served a notice to quit.

The appellant has contended, through Mr. Kunda his advocate, that the learned trial judge
misdirected himself on both grounds. As to the monthly tenancy being a term of years
certain he relies on Musingah v Daka (1) and S J Patel (Z) Limited v Bancroft
Pharmaceuticals Limited (2) both of which were High Court decisions and both of which
discussed the question of what is a term of years certain. In Musingah (1), Doyle, C.J.,
held that even a term of eleven months was a terms of years certain because, in the
context of the Act (the language "term of years certain" meant a term certain not exceeding
twenty-one years. In S.J. Patel (2) Moodley, J., was able to find, on facts very similar to
those obtaining here, that a monthly tenancy which had run from month to month over a
period of twelve years was, by virtue of section 3 (2)(g) (ii) of the Act, a protected tenancy.
He relied on Musingah (1) to find that a term certain of less than a year was a term of years
certain within the definition of the word "tenancy" in section 2 of the Act. He also relied on
the definition of the phrase "term of years absolute" set out at page 144 of the Third Edition
of the Law of Real Property by Megarry and Wade which reads:

'' 'Terms of years absolute'

'Terms of years' is defined as including a term of less than a year, or for a year or
years and a fraction of a year, or from year to year. In effect 'term of years' seem to mean
a lease for any period having a fixed and certain duration as a minimum. Thus in addition to
a tenancy for a specified number of years (e.g. to x for g years), such tenancies as a yearly
tenancy or a weekly tenancy are 'terms of years' within the definition for there is a
minimum duration of a year or a week respectively."

We must point out that in relying on the definition which we have 2 just quoted, Moodley,
J., misdirected himself since it is obvious that the definition relied upon is one contained in
the Law of Property Act, 1925, which is not one of the English statutes applying to this
country in terms of the British Acts Extension Act Cap. 5 as well as the English Law (Extent
of Application) Act Cap. 4. However, we find that, despite the misdirection, Moodley, J., still
came to the correct conclusion when he argued to the effect that, as the original term in a
monthly tenancy was for a month certain, that tenancy had been one for an otherwise
unprotected term certain, of less than three months within the meaning of section 3 (2) (g)
of the Act; but that, as the tenant had been in occupation for a period in excess of six
months the tenancy became protected by virtue of sub-paragraph (ii) of section 3 (2) (g).

We must allude to the remarks which were made, obiter, by Baron, D.C. J., in Lusaka
Auctioneers & Estate Agents Limited v Morton Estates Limited (3) when he said from page
100:

"The English Landlord and Tenant Act, 1954, applies by definition to all tenancies,
whether periodic or for fixed terms. Our Act applies to tenancies 'for a term of years certain
not exceeding twenty-one years'. Doyle, C.J., in Musingah v Daka (1) construed 'term of
years certain' as meaning a term certain and held that the Act applied to a term certain of
eleven months, a decision with which I respectfully agree; the same reasoning would make
the Act applicable to even shorter terms certain. But it would be quite another matter to
construe 'term certain' as including a periodic tenancy. It may be argued with some force
that there is no practical difference between a tenancy 'for three months and thereafter
from quarter to quarter' and 'a quarterly tenancy'; but English law has always drawn a
distinction, and the courts cannot pretend that it does not exist.''

It is evident that the learned trial judge in this case felt constrained to construe the
expression "term of years certain" in relation to the monthly tenancy in the manner Baron,
D.C.J., feared it might be. Moodley, J., as already seen, came to a different conclusion. We
respectfully wish to endorse the reasoning which Moodley, J., adopted when he referred to
the initial term of one month as a term certain. In any periodic tenancy such as monthly or
weekly or quarterly and so on, it is obvious that the initial or original period with reference
to which the tenancy itself comes to be described or reckoned must be a definite period of
fixed duration such as one month and so on. In a monthly tenancy, therefore, the letting
can only be in the first place for one month and thereafter from month to month. As the
initial tenancy was for a term certain of one month, it was a term certain not exceeding
three months as contemplated by section 3 (2) (g) of the Act. Continued occupation beyond
six months brought the tenancy under the protection of the Act in terms of the exception in
sub-paragraph (ii). Of course, we do not seek to pretend that there is no distinction
between a periodic tenancy as such and one simply for a term certain - the latter has a
definite and fixed duration while the former is reckoned by the period agreed or implied
(such as by the conduct of the parties) and does not 3 expire without notice at the end of
the period or at the end of each succeeding period. The critical point here is that there is in
fact an initial definite period and the springing interest which arises at the beginning of the
next period results in the tenant remaining in occupation, as envisaged by section 3 (2)
(g) (ii) which can reasonably be interpreted in this vein if it is to be given any effect at all.
In any case, if the legislature intended to exclude such periodic tenancies, it would have
plainly said so. In which event, there would have been no need to make any reference to "a
periodical tenancy" under the definition of "notice to quit" in section 2.

The courts have endeavoured, in the cases to which we have referred, to draw attention to
the difficulties created by the language used in describing the tenancies intended to be
protected by or excluded from the protection of the Act. Prima facie, therefore, section 3 (1)
intends that the Act should apply to all tenancies except those mentioned in sub-section 2 of
section 3. The provision which arise in this case and which necessarily extend the scope of
tenancy to be protect are those in section 3 (2) (g) (ii) which reads:

"3 (2) This Act shall not apply to -

(g)Premises comprised in a tenancy granted for a term certain not exceeding
three months; unless -

(ii) the tenant has been in occupation for a period which, together with any
period during which any predecessor in the carrying on of the business carried
on by the tenant in occupation, exceeds six months."
The reference in sub-paragraph (ii) to the fact that mere occupation beyond the period of a
tenancy initially granted for a term certain not exceeding three months will bring about
protection if the occupation exceeds six months is surely a good indication that the
legislature cannot have intended to deprive persons in the appellant's position of such
protection. Where in fact it is possible to find an initial term certain of fixed and definite
duration and either such term certain is sufficiently long on its own to fall within the Act or,
if it is of insufficient duration, it is coupled with the requisite period of occupation referred to
in sub-paragraph (ii), which we have quoted, then it is plainly the court's duty to give effect
to the true intention of the legislature which was the protection of tenants against
unwarranted evictions.

To summarise, we find that as a monthly tenancy, though periodic, begins with a month
certain and as section 3 (2) (g) of the Act extends protection to such a short term certain if
there has been the appropriate period of occupation (as there was in this case) the tenancy
was one to which the Act applies. We should also mention that Mr. Mbushi conceded to the
ground of appeal in this respect.

As to the finding that a tenant served with a notice to quit cannot apply to the court, the
appellant's submission, which is entirely correct,4 is that the learned trial judge erroneously
confused an application to the court with a request to a landlord under section 6 in
particular its sub-section (4). No such request can be made by a tenant to his landlord after
the latter has served notice to quit. On the other hand section 4 specifically provides for
application to the court after a notice to quit where tenant indicates that he will not give up
possession or after a request has been made to a landlord who does not accede to such a
request. The sub-section under section 6 which the learned trial judge misread as barring
an application to the court has in fact no bearing upon and does not arise in this case. Mr.
Mbushi, who had originally intended to argue against this ground of appeal on the same
basis as the learned trial judge had dealt with the case, quite properly abandoned his
argument when he saw that, had the learned trial judge not misapprehended the two
situations envisaged under these two sections - which are distinct and separate, he could
not have held as he did.

It was for the foregoing reasons that we upheld the appeal, reversed the judgment below
and granted the new tenancy. The appellant will have his costs to be taxed in default of
agreement.

Appeal upheld

DONALD WILLIAM FLUCK v ATTORNEY-GENERAL (1986) Z.R. 5 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, JJ.S.
6TH JANUARY, 1986
(S.C.Z. JUDGMENT NO. 2 OF 1986)

Flynote

Estate Duty - Remission of duty for surviving spouse - Rate - Calculation

Headnote
This was an appeal from the decision of the High Court on the interpretation of section 9 of
the Estate Duty Act, Cap. 660 of the Laws. The High Court Judge interpreted the section to
mean that the surviving spouse who inherits property upon which estate duty is payable is
only entitled to a rebate of half the duty chargeable on the first K50,000 of the value of the
property so inherited, in this particular case 2 1/2%.

Held:
There is no authority or justification for the fragmentation of the estate for one purpose and
aggregation of it for another.

The rate of remission or rebate is calculated at half the rate payable in respect of the
aggregate of the whole of the estate.

Legislation referred to:

Estate Duty Act, Cap. 660, s. 9

For the appellant: D. F. Quirk, of Messrs Ellis & Co.

For the respondent: M. E. Mwaba, Senior State Advocate.5

Judgment

NGULUBE, D.C.J.: delivered the judgment of the court.

This is an appeal from a decision of the High Court at Lusaka concerning the interpretation
of section 9 of the Estate Duty Act, chapter 660 of the Laws. For convenience we propose to
quote the section and it reads:

"Where the Commissioners are satisfied that estate duty has become payable on any
property inherited by the surviving spouse of the deceased, they shall remit, or, if estate
duty has been paid, shall repay, one-half of the duty chargeable on the first fifty thousand
kwacha of the value of such property.''

The facts of this case were not in dispute. It is common ground that, for purposes of
calculating the estate duty, the Act requires that the property of the deceased person shall
be aggregated and then, depending on the total value, there is a schedule which sets out
the rate of duty to be paid. There was no dispute in this case that the property as a whole
attracted duty at the rate of 8%. The bone of contention was what should be the amount of
the section 9 rebate in the case of the surviving spouse who inherited the estate in this
case.

On behalf of the appellant, it was argued in the High Court and here that the rebate on the
first K50, 000 relates to one-half of the duty payable on the whole estate, in this case 8%,
half of which is 4%. Mr. Mwaba on behalf of the respondent has argued in support of the
High Court decision to the effect that the reference to the first K50, 000 of the value of the
property means that the rebate must be at the rate of duty chargeable on an estate valued
at K50,000 namely, 5% which means that only half of that, that is 2 1/2, is refundable.

We have considered this matter and we agree entirely with the observations of Mr. Quirk
that there appears to be no previous case authority in this country on this particular issue.
We note that both the learned trial judge and Mr. Mwaba seek to construe section 9, when it
refers to duty chargeable on the first K50,000 for purposes of rebate, as if this were a
reference to duty chargeable on an estate valued at K50,000 simplicity or duty chargeable
as if the estate were for K50,000. We do not read the section in this way. In our considered
opinion, the section must mean, as it says, that the duty actually paid or chargeable
attracts a refund relative to, or as it relates to, the first K50, 000 of the total value of the
estate for assessment. In our view, therefore this would mean 4% in this case. The
respondent's argument could only be accepted and would only be valid if the total estate
attracted duty in graduated segments such as 5% on the first K50,000 6% on the next so
many thousands, 7% on the next lot of thousands and so on. But that is not what the
schedule to the Act says, nor is it what sections 4 and 12 of the Act say should be done to
the property. Section 4 provides for the making of a single charge of estate duty while
section 12 requires the aggregation of all the deceased's property so as to form one estate
upon which estate duty is payable at one, and one only, of the applicable rates set out in
the schedule. We find that section 9 is clear in its terms. For example, when it refers to the
commissioners6 granting a rebate in the expression "they shall remit", payment will not
have been made at 5% in this case as that is not the rate of duty chargeable on any part of
the Zambian estate the whole of which falls to be charged at a single rate of 8%.

We agree entirely with Mr. Quirk that there is no authority, and no justification, for the
fragmentation of the estate for one purpose, and aggregation of it for another: that is,
fragmentation for rebate and aggregation for fixing the appropriate rate. On the contrary
section 12 specifically demands that the estate should be subject to aggregation and a
single rate.

For the reasons given this appeal must be allowed. We reverse the decision of the High
Court and enter judgment for the appellant. We award the costs both here and below to the
successful appellant.
Appeal Allowed

PATSON CHEMBO CHIMBALA v THE PEOPLE (1986) Z.R. 7 (S.C.)

SUPREME COURT
SILUNGWE, C.J., GARDNER AND MUWO, JJ.S.
10TH DECEMBER, 1985 AND 11TH FEBRUARY, 1986
(S.C.Z. JUDGMENT NO. 3 OF 1986)

Flynote

Evidence - Defence of - Mistake of fact - Honest and reasonable belief - Effect of.

Headnote

The appellant a Police Officer at the time of the offence was detailed with many others to go
to a house invaded by robbers who were still in the house. When they reached near the
house noise was heard emanating from inside, and attributing this to the presence of
robbers on the premises, warning shots were fired. Believing that the occupants of the
house were in danger the Police forced their way in through a window after demands that
the door be opened failed. Upon entry, the appellant saw a figure in one of the bedrooms
(which figure was later identified as the deceased), trying to jump out of the window. The
appellant ordered the deceased to put his hands up. The deceased tried to hide under a
bed. Believing that he was an armed robber the appellant fired three fatal shots. The
appellant was convicted of manslaughter. He appealed.

Held:
(i) Whenever the issue of mistake of fact arises; the question is not whether the
accused acted reasonably, but whether he entertained an honest and reasonable, but
mistaken belief as to the existence of facts, which if true would make the act or omission
charged against him innocent. 7
Cases referred to.
1. R. v Tolson [1889] 23 Q.B. 168
2. D.P.P. v Morgan 61 Cr. App. R. 136
3. Mutambo and Others v The People (1965) Z.R. 15
4. Sankalimba v The People (1981) Z.R. 258

For the appellant: In person.

For the Respondent: F. Mwiinga, Senior State Advocate

Judgment

SILUNGWE, C.J.: delivered the judgment of the court.

The appellant, who had been tried on information containing one count of murder, was
acquitted on that count but convicted of the lesser offence of manslaughter and sentenced
to imprisonment for four years. The appeal was against the said conviction, the only point at
issue being whether the defence of mistake of fact was available to the appellant.

At the conclusion of hearing the appeal, we allowed it and said that we would give reasons
for our decision at a later date; we now do so.

When this case arose, the appellant was a sergeant in the Zambia Police Mobile Unit. The
undisputed facts on which his conviction was founded are set out here below.

On April, 17, 1982, a young man called Kennedy Nkhuwa, the victim in this case, visited his
21 year old friend, Stephen Mubanga, in Lubuto Township, Ndola. As fate would have it,
Kennedy decided to stay overnight at the residence of Stephen's mother, Mrs. Christine
Mubanga, the first prosecution witness (hereinafter referred to as PW1). At about 01.00
hours, on April the 18th, PW1's house was besieged for a period of 45 minutes by a gang of
at least six men. During that time, members of the gang broke burglar bars and smashed
almost all the window panes of the house. Stones were hurled into the house, one of which
struck PW1. PW1 and Stephen (PW2) shouted for help. But when no help was apparently
forthcoming, PW2, his 18 year old brother (PW4) and Kennedy, resorted to the use of
slashers and empty bottles and, in this way, they succeeded in warding off the attack.
However, before the attackers could withdraw and go away, they said they were going to
fetch a motor vehicle and that they would return to the house, kill someone therein and
commit robbery.

Unknown to PW1, PW2 and PW4, PW3, a neighbour - heeded the call for help and,
accompanied by his wife and a Mr. Phiri, also a neighbor went to Lubuto Police Post where
the incident was reported to PW7, a constable, who in turn reported it to PW6, the
Officer-in-charge. Then PW6, PW7 and about two other police officers, accompanied by
PW3, went to PW1's house, using a private vanette. On arrival there, the Police confirmed
that the windows of the house had been shattered. When they heard a noise emanating
from the house, they attributed it to the presence of robbers on the premises.

They then8 fired warning shots, identifying themselves as police officers, but there was no
response from the house. The police knocked at the door demanding that it be opened as
they were police officers, but this was to no avail.

The police went back to the Police Post and shortly thereafter returned to PW1's house with
more reinforcements, using two private motor vehicles. The reinforcements included the
appellant. This time, the assistance of Mrs. Gladys Banda (PW5), a neighbor of PW1, was
enlisted to aid the police in their efforts to persuade the occupants of the house to open the
door. PW5 came with a torch and gave assurances to PW1 about the presence of the police,
asking her to open the door. Strangely enough, PW1 and the other occupants appear to
have been oblivious to any such assurances and to have continued to labour under the
mistaken belief that the assailants had come back again, bent on carrying out their evil
threat.

In the meantime, PW1 and the other occupants, with the exception of Kennedy, had locked
themselves inside a bathroom for security reasons. On the other hand, however, and, in
spite of PW2's persuasion that Kennedy should join him and others in the bathroom,
Kennedy declined to do so, preferring to continue hiding under a bed where he said he was
safe.

When PW5 called out to PW1, addressing her as "Mother of Mubanga'' and the latter
responded in a low voice saying "Mukwai" meaning "Madam/Sir", the police mistakenly
believed that the lawful occupants were being held by intruders at gun-point. The police
then decided to mount a rescue operation. There was complete darkness in the house. PW6
cautioned his officers to be careful as they neither knew the lawful occupants of the house
nor the intruders.

The appellant was the first officer to enter the house through a shattered window and was
immediately followed by two of his companions. All three officers went to a bedroom where
they found scattered things but no human being. They came to a corridor where they could
hear movements and human breath in a locked up bathroom. The appellant told his
colleagues to keep watch while he went elsewhere in search of the intruders. He went to a
bedroom where, seeing a human figure in the darkness, apparently going to jump out of the
window, he told him to raise his hands. Instead of raising his hands, the figure hid under a
bed and, believing that he was dealing with an armed bandit, the appellant fired three shots
and shouted loudly saying: "I have killed one of the thieves here.'' The victim died instantly.
It soon became known that the victim was not a thief but Kennedy Nkhuwa.

On these facts, and, on the authority of R v Tolson (1) the learned trial judge accepted the
maxim ignorantiafacti excusat. Consequently, he was unable to attribute to the accused any
mens rea for murder, and9 so he acquitted him on that charge.

That was not all, for the trial judge went further and identified the bone of contention as
being whether, in firing at the deceased, the accused had "acted reasonably". He then held
that the accused had not “acted under an honest and reasonable belief' that the man he
fired at was a thief. In his judgment, the accused was a trigger happy paramilitary police
officer who had acted "unreasonably and negligently" and that, as such, he was guilty of
manslaughter. This finding was clearly based on two premises: firstly, that it was
unreasonable and negligent for the appellant to shoot at a person who was under a bed;
and, secondly, that PW6 had given to his officer’s specific instructions not to shoot as they
did not know who the tenants were and who the criminals were.

It is trite law that the defence of mistake of fact, that is, of an honest and reasonable, but
mistaken belief, denotes the absence of mens rea and consists in an honest and reasonable
belief entertained by the accused of the existence of facts which if true, would make the act
or omission charged against him innocent. This is a common law principle which was
propounded by Cave, J., in Tolson (1), and adopted by the House of Lords in D.P.P v Morgan
(2). In this country, the principle was applied by the Court of Appeal in Mutambo and Others
v The People (3), at page 29 (see per Charles, J.) and referred to by this Court in
Sankalimba v The People (4), at page 260. The principle is reflected in Section 10 of the
Penal Code, Cap. 146 and reads as follows:

"10. A person who does or omits to do an act under an honest and reasonable, but
mistaken belief in the existence of any state of things is not criminally responsible for the
act or omission to any greater extent than if the real state of things had been such as he
believed to exist. The operation of this rule may be excluded by the express or implied
provisions of the law relating to the subject."

We hasten to point out that neither Section 200 (murder) nor Section 199 (manslaughter)
of the Penal Code expressly or by implication excludes the operation of the said rule.

In our judgment, the trial judge misdirected himself in many ways. Firstly, it was an error
for him to say that the bone of contention was whether the appellant had acted reasonably
in firing at the deceased. Whenever the issue of mistake of fact arises, as here, the question
is not whether the accused acted reasonably, but whether he entertained an honest and
reasonable, but mistaken belief as to the existence of facts which, if true, would make the
act or omission charged against him innocent. In this case, we have no difficulty in
accepting the appellant's defence that he had entertained an honest and reasonable - but
mistaken belief that the lawful occupants of the house were being held at gun-point by
robbers and that, when he saw the human figure of the deceased in conditions of darkness,
he honestly and reasonably, but mistakenly, believed he was dealing with an armed
robber.10

Secondly, the trial judge misdirected himself by holding that it was unreasonable and
negligent for the appellant to shoot at a person who was hiding under a bed, apparently
after having intended to jump out of a window. This is so because, in so holding, the trial
judge did not take into account the circumstance that, when the appellant shot at the
victim, there was darkness in the house and that he honestly and reasonably, but
mistakenly, believed that the victim was an armed bandit and that the appellant's own life
was at stake. It is immaterial that the victim was apparently going to jump out of a window
when, on being ordered to raise his hands, he hid under a bed, as an armed or other
dangerous person may take such a precaution in the hope of positioning himself in such a
manner as to gain advantage over an attacker or such other enemy.

Thirdly, it was an error for the trial judge to hold that PW6 had given "specific instructions"
to his subordinates not to shoot as they did not know who the tenants or the criminals
were. PW6 never gave any such instructions at all. All that he said was in these terms: "I
told them to be careful as we did not know the owners of the house and who were
criminals.''
Fourthly and finally, it was a misdirection to hold that the appellant was a trigger happy
para-military officer as nothing could be farther from the truth. The appellant had gone to
PW1's house insider to rescue the lawful occupants of the house from criminal intruders; he
had gone there as a saviour, not as a criminal, notwithstanding the subsequent turn of
events that resulted in the unfortunate loss of life by an innocent victim. This was a case of
mutuality of an honest and reasonable, but mistaken belief on the part of the appellant, in
particular, and of the police contingent, in general, on the one hand; and on the part of PW1
and the other occupants of her house at the material time, on the other. Had either side not
entertained such a mistaken belief, it is highly improbable that this case would ever have
arisen at all. As it turned out, the occupants of the house mistakenly believed the police
personnel to be robbers, not saviours. On the other hand, the police mistakenly believed
that the lawful occupants of the house were being held by robbers at gun-point. And, as we
have held, when the appellant opened fire at the victim, he honestly and reasonably, but
mistakenly, believed that he was dealing with an armed bandit. In the eyes of the law (that
is, in terms of section 10 of the Penal Code), the appellant was not criminally responsible for
the act and could thus not be convicted of murder or manslaughter.

It follows from what we have said above that the appellant's acquittal was inevitable.
Accordingly, the appeal was allowed, the conviction was quashed and the sentence was set
aside.

Appeal Allowed.11

ATTORNEY-GENERAL v PETER MVAKA NDHLOVU (1986) Z.R. 12 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.
5TH FEBRUARY, 1986
(S.C.Z. JUDGMENT NO. 4 OF 1986)

Flynote

Civil Procedure - Appeal - Factual finding of trial judgment - Conditions for reversal of.

Headnote

The Attorney-General appealed against an award of damages to the respondent for false
imprisonment. The false imprisonment arose out of his alleged arrest and detention in the
cells at Choma Police Station on the 14th August, 1982. The court elected to believe the
evidence of the respondent and his witnesses in opposition to the police and concluded that
he was subjected to false improvement. The attorney-general objected to the trial courts
findings of fact.

Held:
Where it is unmistakable from the evidence itself and the unsatisfactory reasons given for
accepting it, that the trial court could not have taken proper advantage of having seen and
heard the witnesses; this is ground for disturbing the findings of fact.
Nkhata and four others v Attorney-General followed.

Cases referred to:

(1) Nkhata and Others v Attorney-General (1966) Z.R. 124

For the appellant: B.L. Goel, Senior State Advocate,

For the respondent: R.M.A. Chongme, Chongwe and Co.

Judgment

GARDNER,J.S., delivered the judgment of the court:

This is an appeal from the judgment of the High Court awarding damages to the respondent
for false imprisonment which occurred on the 14th August, 1982. The facts of the case were
that the respondent's son was suspected of stock theft and police from Choma Police Station
went to the respondent's village looking for the son. It is alleged in the statement of claim
that the police arrested the respondent without giving any reason for such an arrest and
kept him in the cells at Choma Police Station until twelve noon the following day. It is also
alleged in the statement of claim that only after he was arrested was the respondent told
that his son had been involved in theft of cattle.

The respondent, who was the plaintiff in the action, gave evidence and called his wife to
support him. He said in his evidence at the trial that the police came to his village and told
him that they were looking for his son. He told them that he did not know where his son
was and they then said he must find his son and bring him to Choma Police Station. He said
that when he told the police that he had no transport to comply with such a request they
then arrested him for failing to comply with such a request they then arrested him for failing
to12 agree to find his son and bring him to the police station.

The defence case was that the police were investigating a case of stock theft and the
respondent's son was involved in that case. They therefore went to the respondent's village
where they were making inquiries as to the whereabouts of the respondent's son. According
to the defence, the respondent then became aggressive, violent and started insulting them.
As there were a number of villagers around, the police arrested the respondent for conduct
likely to cause a breach of the peace. He was then taken by the police around several
neighboring villages looking for his son and, when the son was not found, he was taken to
Choma Police Station and charged with conduct likely to cause a breach of the peace. The
police witnesses said that entries to this effect were made in the occurrence book at the
Police Station and in the notebook of the police officer, but when the case came for trial the
arresting officer said that he had lost his notebook and there was evidence that the relevant
page had been torn out of the occurrence book.

Mr. Goel on behalf of the appellant argued that the learned trial judge was wrong in
accepting that the respondent and his wife were telling the truth and finding that the
defence witnesses were lying and that they had invented the charge of conduct likely to
cause a breach of peace in order to justify their detention of the respondent. Mr. Goel
pointed out that the statement of claim alleged that no reason had been given for the arrest
at all and that after the arrest the respondent had been told that the police had been
investigating a case of stock theft against his son, but that when the respondent came to
give evidence he said that he was told that he was being arrested because he refused to
bring his son to the Police Station as requested.
This, argued Mr. Goel, was a contradiction of the statement of claim, and indeed, the
learned trial judge had found that in all probability the respondent was arrested in
connection with the disappearance of his son. Therefore it was argued that the claim in the
statement of claim, namely, arrest without charge, had not been substantiated.

Whilst we agree with Mr. Goel that the evidence at the trial differed from the relevant
paragraph of the statement of claim, we cannot ignore the fact that the statement of claim
made reference to the son's involvement in the charge of stock theft, nor can we agree that
there was such a discrepancy between the statement of claim and the evidence in court that
the respondent and his wife should be treated as untruthful witnesses on that account.

Mr. Chongwe on behalf of the respondent argued a number of matters and in particular that
there was ample evidence upon which the learned trial judge could base a finding on
credibility that the defence police officers were not telling the truth. Both counsel agreed
that the learned trial judge's finding depended solely on the credibility of the witnesses. 13

We have considered the law set out in past judgment of this court when a trial judge's
findings of fact are attacked on appeal, as in this case. In the case of Nkhata and four
others v The Attorney General of Zambia the Court of Appeal which was a predecessor of
this Court made the following comments on this type of appeal:

"(1) (2) By his grounds of appeal the appellant, in substance, attacks certain of the
learned trial judge's findings of fact. A trial judge sitting alone without a jury can only be
reversed on fact when it is positively demonstrated to the appellate court that:

(a) by reason of some non-direction or mix-direction or otherwise the judge

erred in accepting the evidence which he did accept; or

(b) in assessing and evaluating the evidence the judge has taken into
account some matter which he ought not to have taken into account, or
failed to take into account some matter which he ought to have taken
into account; or

(c) it unmistakenly appears from the evidence itself, or from the

unsatisfactory reasons given by the judge for accepting it, that he
cannot have taken proper advantage of his having seen and heard the
witnesses' or

(d) in so far aside judge has relied on manner and demeanour, there are
other circumstances which indicate that the evidence of the witnesses
which he accepted is not credible, as for instance, where those witnesses
have on some collateral matter deliberately given an untrue answer".

In her judgment the learned trial judge gave detailed reasons including, for instance, the
fact that the page from the occurrence book was missing, for disbelieving the defence
witnesses. In the course of giving these reasons, the learned trial judge entered into
speculation and reasoning which in our view could not support the finding which she made.
In view of the course which we propose to take we will not go into detail as to these
speculations and reasoning except to say that they were such as, in our view, amount to
serious misdirections, and, on the principles set out in the Nkhata case, the learned trial
judge's finding of fact must be disturbed under ground (c), that is, that it unmistakably
appears from the evidence itself, and from the unsatisfactory reasons given by the judge in
accepting it, that she cannot have taken proper advantage of her having seen and heard
the witnesses. In this case the learned trial judge rejected the defence evidence and, as we
have said, gave unsatisfactory reasons for doing so. As a result, she accepted the plaintiff s
evidence for the same unsatisfactory reasons.

The appeal is allowed and the judgment of the High Court with its attendant award of
damages is set aside.14

We have considered whether or not this is an appropriate case for retrial and we have taken
note of Mr. Goel's argument that there is sufficient evidence on the record for us to come to
our own conclusion. However, in view of the fact that this case depended entirely upon the
question of credibility, namely, that there were two entirely conflicting sets of evidence from
two different sets of witnesses, who could each have his or her own reasons for being
prejudiced, we are quite satisfied that it would be quite impossible for this court to
substitute from the record before us a judgment of our own deciding which of the witnesses
were telling the truth. We have no alternative therefore, but to send this case back for
retrial and we accordingly order that this case be retried before another judge of the High
Court.

The money paid into court by the appellant in respect of the damages is ordered to be paid
out of court to the appellant. Costs will be in the cause.

Appeal Allowed.
Retrial Ordered.

ESTHER MWIIMBE v THE PEOPLE (1986) Z.R. 15 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, JJ.S.
14TH JANUARY AND 25TH FEBRUARY, 1986
(S.C.Z. JUDGMENT NO. 5 OF 1986)

Flynote

Criminal law and procedure - Murder - Provocation - Evidence of - Necessity for.

Evidence - Similar fact evidence - Admission of old Police docket - Validity of.
Evidence - Witnesses - Unlisted prosecution witnesses - Whether admissible.

Headnote

The appellant was convicted of the murder of her husband and sentenced to death. She
appealed claiming cumulative and immediate provocation on the basis of the couple's
unhappy marital history.

Held:

(i) Evidence of cumulative provocation in the absence of immediate provocation cannot

suffice to establish the three vital elements for the defence to stand i.e. the act of
provocation, the loss of self control and the appropriate retaliation.
(ii) Evidence of an alleged previous attempt by an accused on the life of a victim is
admissible at the courts discretion as similar fact evidence provided that the court has
clearly15 established that its evidential value outweighs its prejudicial effect.

(iii) It is irregular for the state to call a witness who was not on the list and in respect of
whom the procedures under s. 258 of the CPC are not complied with; the defence
should raise an objection to this at the earliest opportunity.

Cases referred to:

(1) Rosalyn Zulu v The People (1980) Z.R. 341
(2) R. v McInnes [1971] 3 All E.R. 295
(3) R. v Julian [1969] 2 All E.R. 856
(4) Palmer v R. [1971] 1 All E.R. 1077
(5) The People v Lewis (1975) Z.R. 43
(6) Elisha Tembo v The People (1980) Z.R. 209
(7) Munkala v The People (1966) Z.R. 12
(8) Liyambi v The People (1978) ZR 25

Legislation referred to:

Criminal Procedure Code, Cap. 160, s. 258
Supreme Court of Zambia Act, Cap. 52, s. 15

For the appellant: S. S. Zulu, Zulu and Co.,

For the respondent: N. Sivakumaran, Assistant Senior State Advocate

Judgment

NGULUBE, D.C.J.: delivered the judgment of the Court.

The appellant was sentenced to undergo the extreme penalty for the murder of her
husband. It was not in dispute that the appellant killed her husband when, on the night of
2nd January, 1984, she burnt him with hot cooking oil in the matrimonial home. He was
hospitalised but died on 11th January, 1984, of extensive burns on the face, the front of the
head, the front of the chest to a point just above the abdomen, then burns on the back of
the chest to a point half way down. He was also burnt on the arms and hands and on the
lower extremities. His private parts were also burnt. The doctor's internal examination
revealed that the skin in front of the skull was burnt and there was haemorrhage under the
bone and brain layer. 45 percent of the body was burnt. The issue at hand in the trial court
and here was whether on the facts and in the circumstances to which we shall shortly turn,
the appellant's action was justifiable at law so as to absolve her of any criminal liability or if
grounds existed which the law accepts as reducing the charge to one of manslaughter only.
The defences put forward were self-defence and, in the alternative provocation. The learned
trial judge rejected both.

On the evidence there was no dispute that the couple's marriage was16 an unhappy
one.The husband was given to extreme violence and frequently assaulted and injured his
wife. The prosecution case was that on the night in question, the appellant deliberately
boiled some cooking oil in a big black cooking pot which was exhibited in the case and that
she deliberately poured this boiling oil on her husband as he lay asleep on the bed. She
then ran out of the house through a window in the bathroom. The deceased, who was
naked, was given a chitenge material by his daughter, PW. 5 and a jacket by his son, PW1.
The assistance of pw.8, the neighbor, was sought and the deceased was taken to the
hospital. There was evidence that the deceased kept a number of brief cases one of which
he warned his family not to touch as it was dangerous. There was also evidence that after
the incident a pounding stick and a hammer belonging to the family were found under his
bed. The prosecution case was that the bedding was soaked with cooking oil and the big
black pot was seen by the witnesses to contain a film of oil. The daughter, pw.5, removed
the pot from the bedroom and put it in the kitchen.

The appellant's evidence was to the effect that, on the night in question, the deceased
arrived home late at night. She was sleeping in a chair in the sitting-room waiting to open
for him since he did not have the keys to the house. She was to realise later that he must
have entered the house through the bathroom window since the next moment he shook her
to wake her up. Her inquiry as to how he had come in, since she had the keys received a
rude retort. He threatened her that she would not see the sunrise the next day. He ordered
her to cook for him for what he said would be the last time. While he held on to her
night-dress, and at his request, she cooked some chips and some sausages. It was not the
big black pot which was used but the electric pot which was also exhibited in court. She
carried the plateful of chips and the sausages together with a knife and fork. They retired to
the bedroom where he ate the sausages and some of the chips. She noticed that under the
bed, he had a hammer, a pounding stick and a knife. He talked at length about the
problems he was facing at work; about his suspension from duty and an impending
prosecution against him, inter alia, for the alleged murder of a white man whom he had
collected from prison in Kabwe who was said not to have been duly delivered to Lusaka. He
complained that the appellant must have revealed to the police, who searched his house on
29th December, 1983, that he had a lot of property and unlawful firearms which were all
taken during the search. She became very frightened when he said he would kill all the
children, the appellant and himself. She tried to dissuade him. At length he declared that he
had stopped his quarrelling and his other ideas. Because of his previous violence which had
left her scarred all over, she did not believe him and thought she would be killed that night.
He requested her to go and switch off the lights in the sitting room and the kitchen. She left
him in the bedroom but thought he might be following her. He was thinking of her life and
that of her children. She heard explosions and saw smoke coming from the bedroom and
thought that he must have exploded the dangerous briefcase and must have intended to
harm her as she walked back into17 the bedroom but that, fortunately, she had taken long
to complete switching off the lights. She thought that the quarrelling had not ended and
that he meant to kill her and the children. She asked him if he intended to kill her and he
shouted back that he had stopped, that it was all over and she should go to bed. She did
not believe him. She went into the kitchen and fetched the hot cooking oil in which she had
fried the chips thinking to herself that if she should meet him in the corridor, as she
returned to the bedroom, and if he should attempt to attack her, she would use the oil in
her defence. He was not in the corridor. She found him lying in bed but not asleep. She
questioned him about the explosions. He said it was all over and that she should come to
bed. She asked him if he had seen what she had in her hands namely, the electric pot full of
boiling oil. He replied in the affirmative. She told him that if he had really stopped his
quarrelling and his ill intentions against her and the children, he should hand over to her the
pounding stick, the hammer and the knife which were under the bed. He bent over, picked
up the knife and, instead of giving it to her in a gentle and proper manner, he threw it at
her with considerable force, injuring her on the arm. At the same time, he had got up and
was advancing towards her. She then threw the pot containing the hot cooking oil at him.
He called to her to fetch the house keys from his trouser pocket and arrange to take him to
the hospital. She did not trust him and thought that was a ploy to grab her and finish her
off. She ran out through the bathroom window.

It was argued at the trial that her evidence should be accepted and that such evidence, on
the authority of Rosalyn Zulu v The People (1) disclosed self-defence. In the alternative, it
disclosed provocation which should reduce the charge. The learned trial judge distinguished
the facts in Zulu and he disbelieved her. Going by her own account in court and on the basis
of a warn and caution statement which she made to the police, the learned trial judge held
that her actions were not within the principles of self-defence. The learned trial judge found,
among other things, that her actions did not demonstrate that she did not want to fight;
that the deceased made no immediate attempt to harm her but that she challenged a
sleeping person after travelling all the way from the kitchen with hot cooking oil. He found
that she had every opportunity to run away and that her action was not instinctive but
deliberate and unreasonable. He disbelieved her and found that she poured cooking oil on
the deceased as he lay in bed. The learned trial judge therefore rejected the plea of
self-defence. He also rejected the defence of provocation holding that it was not available
on the facts of this case.

On behalf of the appellant, Mr. Zulu has advanced a number of grounds. One major ground
is to the effect that the learned trial judge misdirected himself in disbelieving her story and
in finding that self-defence failed on the facts of the case. The arguments under this ground
boiled down to the submission that, since only the appellant and the deceased were party to
the events that night, it was wrong for the learned trial judge to rely on the evidence of the
children and other18witnesses in order to disbelieve her story that she had fried chips in
the electric pot, that he had exploded a danger box, he had threatened her and finally
thrown a knife at her. We have been asked to find that there was no prosecution evidence
to disprove her detailed account and that, accordingly, the fatal finding that she had poured
oil on the deceased as he lay in bed was not justified. According to the submissions the
salient facts should have been and should now be accepted, can be summarised thus:

After the deceased had threatened to kill them all, she had genuine fear for her safety and
that of her children; after all he was a man capable of extreme violence and the mood he
was in was frightening to her. The house was locked since he had at some stage during the
evening obtained the possession of the keys; escape was not easy and she was thinking of
her children. She had seen the weapons under the bed and genuinely feared be might use
them against her. She did not believe his assurances that he had desisted and her fears
were fanned when he exploded the dangerous briefcase. She carried the cooking oil solely
as a defensive weapon in case he should attempt to attack her in the corridor and also to
use it for purpose of divesting him of the weapons under the bed. When he threw the knife
and advanced menacingly towards her, she was justified in throwing the pot containing the
hot cooking oil at him in self-defence.

If such facts are accepted, it is arguable that self-defence would arise. The principles
themselves governing self-defence, as provided for under section 17 of the Penal Code,
have normally not been the subject of much controversy. It is usually in the application of
those principles to the facts of any given case that difficulties are encountered. In the
instant case, the learned trial judge recited the principles applicable quoting from R. v
McInnes (2) which, among other things, refers to the requirement that a person under
attack should try to retreat if the circumstances permit as simply one of the factors to be
taken into account in judging the reasonableness of any actions taken by an accused in
self-defence. That case also quoted with approval the statement of the principles in the
judgment of the Court of Appeal, delivered by Widgery, L.J., in R. v Julien (3). The learned
trial judge also cited a passage from the Privy Council's decision in Palmer v R. (4). In our
view the authorities make it abundantly clear that the facts of any particular case will show
whether or not the situation in which the accused found himself, including the nature of the
attack upon himself or the gravity of imminent peril was such that it was both reasonable
and necessary to take the particular action which has caused death in order to preserve his
own life or to prevent grave danger to himself or another. That the facts are all important is
illustrated by a number of cases decided in our own courts. Examples include the Rosalyn
Zulu (1) cases the facts of which were properly distinguished. In that case the deceased
husband was prone to extreme violence against the accused wife. After a quarrel the
deceased went to have a bath. As he was in the bathtub he called her and threatened to kill
her. There was a pistol on the cistern and he made an attempt to seize it. She took it and
shot19 him. This court found that the immediate attempt by the deceased to seize the gun
coupled with the fact that he was so close to her that he could still attack her, despite the
fact that she had the gun, made it reasonable for her to believe that she would be assaulted
and the gun taken away from her and used against her if she did not first use the weapon.
There were also other aspects which left a doubt in the mind of the court which were
resolved in her favour. But undoubtedly the finding of self-defence in that case was on its
own peculiar facts. A similar verdict was returned in the People v Lewis (5), again on its own
facts. Again in Elisha Tembo v The People (6) in considering whether the accused was
reasonable in assuming that he was in danger to such an extent that it was reasonable to
shoot at a suspected chicken thief in a chicken run, we said we were bound to take into
account the difference between a man who is attacked and has to decide how to defend
himself in the anguish of the moment and a man who has heard a disturbance in an
out-building and who has had the presence of mind to go into his house, obtain a pistol and
fire a warning shot in the air to accompany his challenge to the intruder. On the latter set of
facts, the defence of self-defence failed. There are many other cases in which the particular
facts have either supported or failed to support self-defence. An extreme failure of the
defence is illustrated by Munkala v The People (7) in which the accused killed the deceased,
who was not attacking anyone, to prevent him from killing the remainder of the accused's
children through witchcraft, other children having died in quick succession and the accused
being firmly convinced that the deceased was responsible. Our predecessor court said, at
page 13:

"His position was in no way different to that of a person who, fearing that some
enemy is going to kill him, anticipates that event by shooting his enemy first himself."

Turning to the present case, and as we have already stated, the facts contended for by the
appellant could support self-defence but - and this is the critical question - only if they can
stand. On behalf of the state, Mr. Sivakumaran has argued that the learned trial judge was
perfectly justified in rejecting the appellant's story and in finding that she had poured
cooking oil on the deceased as he lay in bed. The main facts relied upon as disproving the
appellant's contention, that she threw the pot as he advanced towards her, are to be found
in the medical evidence. The learned trial judge found that the extent and nature of the
burns, especially those at the back, as established by the medical evidence, supported the
finding that somebody poured the oil from the back and the front. He also relied on the fact
that the bedding was soaked in oil. We agree with the learned trial judge that, because of
the nature and extent of the burns, especially those at the back, as established by the
medical evidence, the appellant's story that she threw the pot as the deceased advanced
towards her was disproved. Such medical evidence fully supported the finding that she
poured the oil on him as he lay in bed. The suggestion put forward by the appellant, that
the deceased may have struggled with the pot, or the suggestion by counsel that the
deceased may have been fully dressed 20and that the clothes may have had something to
do with the burns at the back cannot be supported. It is quite clear that once her allegation
is disproved and once evidence is accepted which supports the finding which the learned
trial judge did make, then self-defence is not available. It follows also that it did not matter
which pot was used. All that was relevant was that she purposely took boiling oil and poured
it on the deceased as he lay in bed. Self-defence is not available on this finding and it would
be to no avail if she was anticipating the event of his doing her and the children some harm
later on that night. The submissions on self-defence are, therefore, unsuccessful.

The next major ground alleged misdirection on the part of the learned trial judge in
rejecting the defence of provocation. It was argued, among other things, that quite apart
from the aspect of cumulative provocation over the years, the appellant was, that night,
provoked by a number of circumstances. These included the threats to kill her and the
children; the act of hiding the house keys; the act of hiding weapons under the bed; that of
exploding the dangerous brief case; and the throwing of the knife. It is evident, having
regard to the finding that the deceased lay in his bed, that some of the alleged acts of
provocation cannot arise for consideration. However, one of the leading cases on
provocation in this country is Liyambi v The People (8). We held in that case that there are
three inseparable elements to the defence of provocation, namely; the act of provocation,
the loss of self-control, both actual and reasonable, and the retaliation proportionate to the
provocation. All three elements must be present before the defence is available. In the
instant case, Mr. Sivakumaran has submitted that there was no evidence of provocation and
that the learned trial judge properly so found. We agree that there is nothing in the
evidence to suggest that the appellant suffered sudden or any provocation by reason of any
of the factors put forward. The evidence, far from suggesting any provocation or any loss of
self-control, indicated that the appellant embarked on a course of action which was
dispassionate and deliberate and certainly not in the heat of passion upon a sudden
provocation. This would be so even if her evidence had been accepted which it was not. On
the test laid down in Liyumbi (8), the submissions in this regard, on the facts of the case,
must fail for absence of all three elements.

Mr. Zulu raised two other subsidiary grounds, both of which are valid. One was that the
learned trial judge erred in admitting the evidence of an old police docket in which an
allegation of the attempted murder of the deceased by the appellant had been investigated
and dropped. Mr. Sivakumaran properly concedes that the docket was wrongly admitted but
submits that the irregularity occasioned thereby was not fatal. Evidence of an alleged
previous attempt by an accused on the life of a victim may in certain cases, and if relevant,
be admissible as similar fact evidence in proof or disproof of a fact in issue. However, the
admission of similar fact evidence is in the discretion of the trial court which will no doubt,
among other things, consider whether its evidential value outweighs its prejudicial effect. In
this case, there is21 nothing on the record to indicate that the learned trial judge had
discussed the exercise of his discretion. That being the case, and following the usual
approach to criminal cases, we must assume in favour of the appellant that had' he
considered the question, he would have exercised his discretion in favour of exclusion. It
follows also that the admission of the evidence complained of must be regarded as
wrongful. The learned trial judge, properly in our new, made no reference whatsoever in his
judgment to this docket or its purport. But Mr. Zulu's argument is that it may have
influenced him. The irregularity under discussion can only affect the outcome of this case if
we consider that it was a material irregularity and that it had occasioned a failure of justice.
In this case we agree with the observations by Mr. Sivakumaran that the learned trial judge
had infect fully disclosed his reasoning and the facts and factors upon which he based his
decision. It is apparent that the evidence which was wrongly admitted did not feature in any
such reasoning and can therefore not be said to have influenced the trial court. It would, of
course, be preferable for a trial court which realises an error and which intends to ignore
evidence wrongly admitted to say so plainly.

Another irregularity conceded by the State was that a prosecution witness was called whose
name was not on the list and in respect of whom the procedure under section 258 of the
Criminal Procedure Code was not complied with in the matter of the furnishing of
statements and the giving of notice. The witness was pw.11, a bomb disposal expert who
came to testify to the characteristics of the dangerous briefcase which allegedly contained
only a timed device which produces a dye but not explosives. Once again this evidence had
no material bearing on the crucial facts which occurred in the couple's bedroom. We are
surprised that objection to this irregularity was not taken at the earliest opportunity.
However, we are satisfied that the evidence did not influence the decision which rested on a
finding that the appellant poured boiling oil on the deceased as he lay in bed. To the extent
that it may be necessary to do so, we find that this is a proper case in which to apply the
proviso to section 15 of the Supreme Court of Zambia Act and to say, notwithstanding the
irregularities referred to, we are satisfied that the remainder of the evidence was such that
had the learned trial judge not fallen into those errors, he must inevitably still have
convicted.

This was a tragic case and we wish respectfully to express our hope that the Executive will
take into account the obiter remarks by the learned trial judge at the end of his judgment in
favour of the appellant. Our task has been to apply the law as it is and for the reasons given
this appeal is dismissed.

Appeal Dismissed.22

MOHAMED A. OMAR v ZAMBIA AIRWAYS CORPORATION LTD. (1986) Z.R. 23 (S.C.)

SUPREME COURT
GARDNER, MUWO AND SAKALA, JJ.S.
22ND JANUARY, 1985
(S.C.Z. JUDGMENT No. 6 OF 1986)

Flynote

Civil Procedure - Appeal - Further Affidavit - Admissibility of.

Civil Procedure - Appeal - Judge in Chambers - Whether actual rehearing.

Headnote

The plaintiff issued a writ claiming the repayment of the balance of a sum of money paid for
two years rent in advance of premises which had never been occupied because the building
was alleged not to have been completed. The affidavit in support of an 0.13 summons
referred to non-completion.

The defendants thought this referred to non-completion of the written lease and filed an
affidavit alleging that money was owed to him for three months notice. The Deputy
Registrar found that there was no defence to the claim that the building had not been
completed and entered summary judgment. The defendants appealed to a High Court judge
and filed a supplementary affidavit to the effect that the erection of the building had been
completed before the payment of rent in advance. The judge held that on the evidence
before the Deputy Registrar there was no defence disclosed. The defendants appealed.

Held:
An appeal to a judge in Chambers is treated as an actual rehearing of the application and
the judge should have regard to the contents of supplementary affidavits.

Cases Referrrd to:

(1) Evans v Bartiam [1937] A.C. 478
(2) Kearney and Company Ltd. and Agip (Z) Limited and Asphalt and Tarmac (1985)
Z.R. 7
(3) Krakaver v Katz [1954] 1 All E.R. 244

For the appellant: A.D. Adams, Messrs Solly Patel, Hamir and Lawrence.
For the respondent: N. Kawanambulu, Messrs Shamwana & Company.

Judgment

GARDNER, J.S.: delivered the judgment of the Court.

This is an appeal from a judgment of a High Court judge in chambers upholding a ruling of
the deputy registrar of the High Court giving judgment to the respondent under Order 13 of
the High Court Rules.

The facts of the case are that the appellant being the owner of two23 houses, agreed to let
them to the respondent and it was agreed that he should receive two years rent in advance.
On the day due for occupation the respondent claimed that the premises were not ready for
occupation, they therefore did not go into possession and the appellant repaid to the
respondent some money which had been paid to him by the respondent but withheld an
amount equivalent to three months rent in lieu of three months notice which should have
been given by the respondent under the terms of the agreement. The respondent issued a
writ against the appellant claiming the balance of the sum it had paid as two years rent in
advance, as money paid for a consideration which had totally failed.

The appellant entered an appearance to the writ and the respondent took out an Order 13
summons for summary judgment. In support of that summons the respondent's Legal
Superintendent swore an affidavit in which the relevant paragraph was paragraph 5 which
read as follows:

"5. That the Defendant is justly and truly indebted to the plaintiff in the sum of
K9,200.00 being the balance of the deposit which the plaintiff had paid the Defendant as an
advance rent for two houses which the Defendant offered the plaintiff but could hot be
occupied by the plaintiff by reason of non-completion."

In his affidavit in opposition the appellant confirmed the agreement as alleged by the
respondent and in addition averred that it was agreed that either party might terminate the
lease on three months notice. He further went on to aver as follows:

"8. That in breach of the said agreement the Plaintiff summarily terminated the
agreement aforementioned and I accordingly deducted the amount equivalent to three
months rental the amount whereof is K9, 200 being the cost of the Plaintiff occupying from
the amount I held as their deposit, my two dwelling houses aforementioned and the amount
equivalent to the 3 months notice."

"9 That the Plaintiff has caused to suffer loss and damage as they agreed to have my
houses from September 1981 and thereafter breached the agreement and I lost the
opportunity to give the houses to other tenants and thereafter had to look for new tenants."

At the hearing before the Deputy Registrar Mr Kawanambulu, the advocate for the
respondent, asked for judgment on the grounds that the affidavit in opposition did not
disclose any defence. Mr Sikota, the advocate for the appellant, stated that he was in
difficulty because on reading paragraph 5 of the respondent's Legal Superintendent's
affidavit he had the impression that the word "non-completion" was a reference to a
non-completion of the agreement to lease. He asked for one week's adjournment, but the
deputy registrar ordered that there was no triable issue disclosed and he granted judgment
as prayed.24

It transpired that the word "non-completion" was intended to refer to the erection of the
buildings, and on appeal to the learned judge in chambers, the appellant filed a
supplementary affidavit in which he averred that the statement by the respondent's Legal
Superintendent was not true and that the premises referred to were completed prior to the
payment by the respondent of the rental. This supplemental affidavit was drawn to the
attention of the learned appellate judge in chambers and Mr. Kawanambulu on behalf of the
respondent argued that before the deputy registrar no defence was disclosed.

In his judgment the learned appellate judge said as follows:

"There was ample evidence before deputy registrar that the defendant had no
defence to the action. The deputy registrar was in my opinion correct in entering judgment
in favour of the plaintiff. The appeal is therefore dismissed with costs."

It is that judgment that is the subject of this appeal.

Mr. Adams, on behalf of the appellant, has argued that the second affidavit filed on behalf of
the appellant disclosed a defence to the action, and has also submitted that the deputy
registrar should have acceded to the request by Mr. Sikota for an adjournment in order to
answer the allegation of non-completion of the buildings which was necessitated by Mr.
Sikota's understanding of the words "non-completion" as referring to non-completion of the
lease or tenancy. He further argued that the learned appellate judge should have considered
the supplementary affidavit, because the appeal before him was an actual rehearing.

Mr Kawanambulu on behalf of the respondent argued that the averment by the respondent's
Legal Superintendent in paragraph 5 of the affidavit was very clear and obviously referred
to non-completion of the buildings. He maintained that the deputy registrar's refusal to
grant an adjournment was justifiable in the circumstances. In regard to the proceedings
before the appellate judge, Mr. Kawanambulu argued that under Order 58 Rule 1 of the
Supreme Court Practice (the White Book), the learned appellate judge was bound to give
due weight to the finding by the deputy registrar as set out in the case of Evans v Bartlam
(1). He further argued that the learned appellate judge had discretion whether or not to
allow the additional evidence in the form of the supplementary affidavit by the appellant,
and he referred to the note to Order 58 Rule 1 to this effect. In the event of this court
considering that the supplementary affidavit should have been taken into account, Mr.
Kawanambulu argued that it still didn't satisfy the requirements of disclosing a triable issue
to warrant the granting of leave to defend, in that the appellant's supplementary affidavit
was no more than a simple denial of the respondent's allegation that the houses were not
completed for occupation.

We have considered the arguments put forward by both counsel and in dealing with points
raised by Mr. Kawanambulu we would comment that the wording of paragraph 5 of the
respondent's Legal25 Superintendent's affidavit with its reference to non-completion was
ambiguous. At the very least Mr. Sikota's statement before the deputy registrar that he
found it ambiguous should not have been ignored by the deputy registrar. In our view the
application for an adjournment in order to put in an affidavit to answer the allegation of
non-completion of the buildings was justified and should have been granted.

With regard to the proceedings before the judge, the editorial note to Order 58 Rule 1
makes it clear that an appeal to a judge in chambers from a deputy registrar is an actual
rehearing. We also agree with the second paragraph of the editorial note 58/1/2, that it is
common practice for a judge in chambers, subject of course to the question of costs, to
admit further additional evidence by affidavit. However, the editorial note continues as
follows:

"...but if a party has taken his stand on the evidence as it stood before the Master or
Registrar, the Judge in Chambers may in his discretion, by analogy with the practice in
Court of Appeal, refuse to allow him to adduce further evidence (see Krakauer v Katz)
(1954) 1 A.E.R. 244."

The case referred to was an appeal to the Court of Appeal in England. In an interlocutory
matter before a judge in Chambers counsel for the defendant was asked whether he
required an adjournment in order to answer the plaintiff’s affidavit. He said that he did not.
On appeal the defendant sought to adduce further evidence by affidavit. In his judgment on
this preliminary point Denning, L.J., said at p. 245:

"It was suggested that an appellant on an interlocutory matter has a right in this
court to adduce further evidence by affidavit. I am clearly of opinion that he has no such
right. It is a matter of discretion in this court whether or not further evidence by affidavit
should be admitted."

It will be seen therefore that Denning, L.J., was referring to an appeal to the Court of
Appeal, and, with respect, we agree with his comments. This court also will admit further
evidence only for the most cogent of reasons. However, with respect, we cannot agree with
the editorial note that the practice in an appeal to a judge in chambers from a registrar is
analogous to the practice in the Court of Appeal. We appreciate that in the Krakauer case it
appears that the interlocutory matter started not before a registrar or master but before a
judge in chambers and the appeal to the Court of Appeal was the first appeal, but we do not
agree that all first appeals should be dealt with in the same way regardless of which court is
to hear them. In this regard we agree entirely with the first part of the editorial note in the
White Book 5812 that "an appeal from the master or registrar to the judge in chambers is
dealt with by way of an actual rehearing of the application which led to the order under
appeal and the judge treats the matter as though it came before him for the first time."
There is no authority cited for this part of the editorial note but we accept it as a statement
of the26 actual practice that obtains in such circumstances. In our view it follows therefore
that, as the matter is treated as coming before the judge in chambers for the first time,
supplementary affidavits should be dealt with as though they were first affidavits, subject to
the question of costs. The second part of the note which we have criticised depends upon
the dictum of Denning, L. J., relating to the practice when an appeal comes to the Court of
Appeal, and, as we have said, we do not accept that the practice before a Court of Appeal or
this court governs the practice before a judge in chambers on appeal from a deputy
registrar. In the case of Kearney and Company Limited and Agip (Z) Limited and Asphalt
and Tarmac (2), we said:

"We would also comment that we agree with Mr. Sikota's argument that on an
appeal to a judge in chambers the application is an entirely fresh application and it was not
improper to lodge a further affidavit which should in fact have been taken note of by the
appellate judge."

We confirm that view in this case, and the learned appellate judge in chambers should have
had regard to the contents of the supplementary affidavit filed by the appellant.

As to Mr. Kawanambulu's argument that in any event the supplementary affidavit does not
disclose a defence, we have only this to say. The plaintiffs reasons why he alleged in the
writ that the consideration had totally failed is contained in paragraph 5 of his affidavit in
support of the summons under Order 13. This alleges that the respondent could not take
possession of the two houses by reason of non-completion, and it was subsequently learnt
that by that the respondent meant that the building of the premises had not been
completed. In order to disclose a defence to this action the appellant had to make an
averment which contradicted that claim. In the supplementary affidavit it was averred that
the buildings were completed before the payment of the rent. Mr. Kawanambulu argued that
the respondent should have been more detailed. In Our view, he could not have been more
detailed than he was because no more detailed allegations as to non-completion were
made. It follows therefore that we find that the supplementary affidavit did in fact disclose a
defence to the action. There is a triable issue and leave to defend should have been given.

The appeal is allowed the orders of the deputy-registrar and the judge in chambers are set
aside and leave to defend is granted.

We order that the amount paid in satisfaction of the Summary judgment shall be repaid by
the respondent to the appellant together with the costs of execution if any, and the costs
both in this court, the judge in chambers and before the deputy registrar shall be the
appellant's in any event .

Appeal Allowed27

NALUMINO NALUNGWANA AND ANOTHER v THE PEOPLE (1986) Z.R. 28 (S.C.)

SUPREME COURT
GARDNER, AG. D.C.J., MUWO AND SAKALA, JJ.S.
25TH FEBRUARY, 1986
(S.C.Z. JUDGMENT NO . 7 OF 1986)

Flynote

Evidence - Spouse of accused - Admissibility of evidence for the prosecution.

Criminal Law and Procedure - Minor Offences - Conviction for Murder charge When
appropriate to convict of receiving.
Criminal Law and Procedure - Trial within trial - Rebutting evidence as to credibility of
witness - Admissibility.

Headnote

The two appellants were charged and convicted of murder on the facts that on 19th
December, 1981, jointly and whilst acting together, they murdered one Tololi Minde.

On appeal it was argued that the learned Commissioner erred in admitting evidence of the
Magistrate as to the credibility of the first appellant in the trial within a trial, it was also
argued that the evidence of first appellant's wife was inadmissible.

Held:
(i) Evidence in rebuttal as to credibility of an appellant may not in general be
admissible.
(ii) Evidence of an appellant's wife is not admissible against him on a criminal charge.
(iii) Although this was a charge of murder the appellant had ample opportunity to defend
himself on any charge arising out of the theft of the goods and a conviction on such
a minor charge was appropriate in this case.

For the appellants: O.R. Okafor, Senior Legal Aid Counsel,

For the appellants: R.R. Balachandran Senior State Advocate.

Judgment

GARDNER, AG. D.C.J.: delivered the judgment of the court.

The appellants were convicted of murder, the particulars of the offence being that on the
19th of December 1981 at Mongu they jointly and whilst acting together murdered Tololi
Minde.

The prosecution evidence was to the effect that on the 19th of December, 1981, the sales
lady in charge of a shop in Mongu locked the shop at 20.30 hours and led it. The following
morning when she went to the shop, she found that the deceased in this case, who was the
night watchman, had been beaten to death and a quantity of goods had been stolen from
the shop. There was abundant evidence that within the next five days the appellants were
seen selling goods which proved to have been stolen from the shop and the prosecution
based its case on this recent possession by the appellants. Further in the support of the 28
case against the first appellant, the prosecution produced a warn and caution statement
which was a confession to having taken part in the robbery during which the night
watchman was killed. Before the confession statement was admitted in evidence the first
appellant complained that the statement had been taken from him under duress and a trial
within a trial was held. At the trial within a trial the first appellant gave evidence that he had
been beaten by the prosecution witnesses, and, in answer to a question in
cross-examination, he said that he had reported the fact that he had been beaten to the
magistrate at his preliminary enquiry. At the close of the cases for the prosecution and the
defence in the trial within a trial, the learned trial commissioner, of his own accord, called
the magistrate who had conducted the preliminary enquiry. This magistrate said in evidence
that he seemed to remember the first appellant and that normally all complaints are put
down in the record, and that there was no complaint to him regarding the assault.
In his ruling on the admissibility of the confession, the learned trial commissioner referred
to the fact that the magistrate had denied receiving a complaint from the appellant.

Mr. Okafor has argued that it was improper for the learned trial commissioner to call a
witness in rebuttal of the evidence of the appellant concerning his complaint to the
magistrate. He said that this was evidence in rebuttal of a collateral issue going to the
credibility of the appellant.

Mr. Balachandran on behalf of the State argued that a trial judge was entitled to call any
witness he desired in order to ascertain the justice of the case, and he was not debarred
from calling a witness to give evidence concerning a matter of credibility. He argued that in
any event the evidence called for was not necessarily rebutting evidence.

We have considered the propriety of a trial judge's calling evidence as to the credibility of
the statement made by the appellant in the trial within a trial. We note that in Phipson on
evidence 12th edition at paragraph 1607 the following passage appears:

"A party may not, in general, impeach the credit of his opponent's witness by calling
witnesses to contradict him as to matters of credit or other collateral matters, and his
answers thereon will be conclusive."

Although that rule is not absolute, in the present context it was wrong for the learned trial
commissioner to have called evidence in rebuttal as to the credibility of the appellant. A trial
judge always has a great deal of discretion but it was most undesirable for him to call
evidence which counsel for the prosecution would not have been permitted to call. The
learned trial commissioner's action amounted to a misdirection and the result was that the
confession was improperly admitted. It follows that the only evidence against the first
appellant was the recent possession of the stolen articles. In this connection the prosecution
called evidence from the appellant's wife and the learned 29 trial commissioner held that
such evidence was admissible under the provisions of section 151 of the Criminal Procedure
Code. Mr. Balachandran, has properly conceded that this was a misdirection on the part of
the learned trial commissioner and the such evidence of the appellant's wife should not have
been admitted.

The first appellant in his defence gave evidence that on the evening of the 20th of
December, he was approached by one Simasiku who said he had some clothing and other
articles to sell. He said Simasiku requested his help in selling the goods and he agreed to
help him. The first appellant said that that was why he was found in possession of the goods
after the incident at the shop were the goods were stolen. He denied taking part in the
murder or the robbery.

In considering whether the appellant's explanation could reasonably be true, the learned
trial commissioner took into account the confession of the first appellant and the evidence
given by the first appellant's wife. Neither of these two items of evidence should have been
admitted and both these misdirections by the learned trial commissioner led to the
conviction of the first appellant on the charge of murder. This is not therefore a case where
the proviso to section 15 (1) of the Supreme Court act can be applied. The first appellant's
appeal against his conviction for murder is allowed and the sentence is set aside.

We turn now to the second appellant. His statement taken by the police was a denial, and in
it he said that he had received goods from the first appellant on the 21st of December, and
he also had agreed to sell the goods on behalf of another.

The prosecution evidence against this appellant, apart from the general evidence from a
number of witnesses that he had sold them goods, was the evidence on pw.7, his former
girl friend, who gave evidence that, at 03.00 hours on the 20th of December, whilst she was
at an initiation ceremony, the second appellant had come to her and given her a quantity of
goods which were found in her possession by the police. There was further evidence from
pw.10 a villager, who said he saw the second appellant at 09.00 hours on the 20th of
December at the same initiation ceremony, and he had purchased a skipper from the
second appellant.

Mr. Okafor on behalf of the second appellant argued that pw.7 was a witness with a possible
interest of her own to serve, and, although the second appellant had admitted being in
possession of the stolen goods at other times, his possession at the early hour of 03.00
hours in the morning of the 20th of December was evidenced only by the uncorroborated
evidence of pw.7.

Mr. Balachandran argued in reply that the evidence of pw.10 who saw the second appellant
with the stolen goods at 09.00 hours of the same morning was corroboration of PW.7's
evidence that he had the stolen goods at 03.00 30 hours that morning. We have considered
this argument, and it is our view that PW.7 was a witness with a possible interest of her
own to serve and her evidence of receiving goods at 03.00 hours from the second appellant
was not corroborated by the evidence of PW.10 which related to the possession of the goods
at 09.00 hours.

In considering whether or not the recent possession by the 2nd appellant led to the
inevitable conclusion that he had taken part in the murder, the learned trial commissioner
relied on the evidence of PW. That she received the goods from the second appellant at
03.00 hours, which must have been very shortly after the time of the murder.

As we have indicated, the evidence of PW.7 to this effect should not have been accepted
without corroboration, and the only evidence remaining is that of PW.10, who alleged that
he saw the second appellant with the stolen goods at 09.00 hours on the 20th of December.
If the conviction against the second appellant is to stand PW.10's evidence as to date and
time must be accepted as indicating that prior to 09.00 hour on the 20th of December there
would have been no opportunity for the second appellant to have received the stolen goods
from some other person who was the real perpetrator of the murder.

As we have found, it was reasonable for the first appellant to explain that he received the
goods on the evening of the same day, the 20th of December, and in considering the
reasonableness of the explanation of the second appellant, we take into account the fact
that the evidence at the trial was given seventeen months after the date of the murder. As
the initiation ceremony referred to continued for a number of days, there was no evidence
to indicate that PW.10 must have been absolutely sure of the times he mentioned in his
evidence by reference to some other known incident and we consider that it would be
unsafe to convict by relying solely on that witness's evidence as to time. The appeal of the
second appellant against his conviction for murder is allowed, and his sentence is set aside.

We turn now to consider whether or not either of the appellants are guilty of a minor
offence.
We appreciate that this was a charge of murder, but there is no doubt that the whole of the
evidence was directed to show recent possession by the appellants of the goods stolen in
the robbery. They had ample opportunity, therefore, to defend themselves on any charge
arising out of the theft of the goods. There was prosecution evidence to the effect that both
appellants ran away after the police came searching for the goods, and we are quite
satisfied that the evidence establishes their guilt of receiving stolen property knowing it to
have been stolen contrary to section 318 of the Penal Code.

We substitute convictions of receiving stolen property contrary to section 318 of the Penal
Code and we impose a sentence on each appellant of three years imprisonment with hard
labour with effect from the 25th June, 1982, the date of their arrest.

Appeal allowed 31

ROSEMARY CHILUFYA v THE PEOPLE (1986) Z.R. 32 (S.C.)

SUPREME COURT
SAKALA, J.S.
27TH MARCH, 1986
(S.C.Z. JUDGMENT No. 8 OF 1986)

Flynote

Criminal Law and Procedure - Bail - Bail pending trial - Whether Supreme Court has
jurisdiction.

Headnote

The applicant was charged with infanticide and was committed to the High Court for trial.
Her application to the High Court for bail pending trial was refused. She applied to the
Supreme Court seeking to be admitted to bail pending her trial.

Held:
For the Supreme Court to have jurisdiction in such matters the following must be the
circumstances:

(a) The High Court must have exercised its powers under section 336 of Cap. 160;
and
(b) The applicant must be an appellant whose appeal is pending before the Supreme
Court.

For the Appellant: A.M. Wood, D.H Kemp and Co.

For the Respondent: R. Balachandran, Senior State Advocate.

Judgment

SAKALA, J.S.:
This is an application supported by an affidavit in which the applicant is seeking to be
admitted to bail pending her trial. The affidavit discloses that the applicant who has been in
custody since October, 1985, was on 3rd December, 1985, committed to the High Court for
trial for the offence of infanticide. On 18th December, 1985, she applied to the High Court
at Kitwe to be admitted to bail pending her trial. In a reserved ruling delivered on 28th
January, 1986, the High Court Commissioner refused to grant the application on the ground
that the offence of infanticide is on the same footing as the offence of murder. The learned
commissioner held that murder being a non bailable offence so was infanticide. I will revert
to this finding later in this ruling. The application however is not before me by way of an
appeal, but even if that would have been the case the provisions of Order 59/1/8 of the
Supreme Court Practice (1985 edition) state in very clear terms that no appeal lies against
the refusal by a judge in chambers to grant bail in criminal proceedings.

The Supreme Court Act itself also seems to suggest that this application is not competent
before this court. On behalf of the respondent Mr. Balachandran argued and submitted that
this court has no jurisdiction to entertain this application as Section 22 of the Supreme
Court Act, the only section empowering the Supreme Court to entertain applications for bail,
refers only to an application by a person 32who has been convicted by the High Court and
whose application for bail pending appeal has been refused by the High Court in terms of
Section 336 (1) of the Criminal Procedure Code. He pointed out that in the instant case the
applicant is awaiting her trial. There has been no conviction yet and there is no appeal
against conviction.

Mr. Wood appearing for the applicant agreed with the submissions by Mr. Balachandran but
contended that the offence was a bailable one.

The issue raised in this application is whether this court has jurisdiction to entertain an
application of this nature. Section 22 of the Supreme Court Act Cap. 52 making provisions
as to bail reads as follows:

"22 (1) Where the High Court has, in exercise of its powers under section three
hundred and thirty-six of the Criminal Procedure Code, refused to admit an appellant to bail
or to postpone the payment of any fine imposed upon him, the Court may, if it deems fit, on
the application of the appellant, and pending the determination of his appeal or application
for leave to appeal to the Court in a criminal matter -

(a) Admit the appellant to bail, or if it does not so admit him, direct him to be
treated as an unconvicted prisoner pending the determination of his appeal or
of his application for leave to appeal, as the case may be; and

(b) Postpone the payment of any fine imposed upon him."

There are two conditions precedent to the exercise of the jurisdiction conferred by this
section. These are; the High Court must have exercised its powers under Section 336 of the
Criminal Procedure Code and refused the application. Secondly the applicant must be an
appellant whose appeal is pending for determination before the Supreme Court. The
applicant in the present application has not been convicted of any offence and is not an
appellant in any appeal.

It follows that in terms of Section 22 Cap. 52 this court has no jurisdiction. The application
is misconceived and accordingly refused.
Before leaving this application I would like to make certain observations on the learned
Commissioner's ruling. The learned Commissioner refused the applicant's bail on the
reasoning that infanticide is same as murder and murder being a non bailable offence so
was infanticide. I am unable to agree with the learned Commissioner. According to our
Criminal Procedure Code all offences are bailable except treason, murder and offences
under State Security Act if so certified by the Director of Public Prosecution (See Section
123 (1) (4) of the C.P.C. Cap. 160). With greatest respect therefore the learned
Commissioner was wrong to equate infanticide with murder. As a matter of practice females
charged of infanticide have been released on bail. The learned Commissioner rightly
observed that infanticide is an offence committed as a result of disturbance of the mind
caused by the stress of the birth. In my opinion this is all the more reason for 33 releasing
on bail an accused facing such a charge to avoid further disturbance of the mind which
could be brought about by anxiety likely to be caused by a long custody period.

It is therefore my sincere hope that when the case comes up for trial, the trial court will be
readily disposed to reconsider the issue of bail if raised again. But in the light of the fact
that the accused has been in custody since October, 1985 it is imperative, in the interest of
justice that the trial be expeditiously undertaken.

Application Dismissed.

GEOFREY MUYOKA v THE PEOPLE (1986) Z.R. 34 (S.C.)

SUPREME COURT
NGULUBE, D.C.L., GARDNER AND SAKALA, JJ.S.
11TH APRIL, 1986
(S.C.Z. JUDGMENT NO. 9 OF 1986)

Flynote

Sentence - Corporal punishment - When appropriate -

Sentence - Mandatory minimum sentence - When should it be exceeded.

Headnote

The appellant in this case was convicted and sentenced for stock theft, in a Magistrate's
Court. Since the statutory minimum sentence was outside the jurisdiction of the trial
magistrate, the matter was referred to the High Court. In sentencing the appellant the
judge sentenced him to twelve years imprisonment with hard labour plus ten strokes of the
cane. The appellant appealed against both conviction and sentence.

Held:
(i) When considering whether to sentence an accused person for more than a
mandatory minimum sentence, courts should take note of the fact that the minimum
sentence imposed by Parliament covers a very broad spectrum of the type of offence for
which Parliament has declared that mandatory minimum.

(ii) Corporal punishment should only be imposed in exceptional circumstances where the
offence is so prevalent as to amount to a serious outbreak of crime and other forms of
punishment have ceased to have a deterrent effect.

Cases referred to:

(1) Emmanuel Phiri v The People (1978) Z.R. 79
(2) Nkoloma v The People (1978) Z.R. 278
(3) Berejena v The People (1984) Z.R. 19 34
(4) Alakazamu v The People (1973) Z.R. 31

For the Appellant: In person

For the Respondent: R. R. Balachandran, Senior State Advocate

Judgment

GARDNER, J.S.: delivered the judgment of the court.

The appellant was convicted of stock theft; the particulars of the offence were that on the
23rd April, 1982 at Namwala he jointly and whilst acting together with another stole five
heads of cattle valued at K2,000, the property of Muwezwa Shimbizhi.

The prosecution's evidence was to the effect that the complainant found that five head of
his cattle were missing. Two prosecution witnesses said that they had received cattle from
the appellant which were identified by brand marks as being the cattle stolen from the
complainant.

The appellant has put forward a number of grounds of appeal in none of which there is any
merit whatsoever. However, there is one matter which we must consider. The two
purchasers of the oxen from the appellant must be regarded as witnesses with a possible
interest of their own to serve. The magistrate recognised this and looked for corroboration
or something more to support the evidence of those two witnesses. He found that
corroboration or something more in the fact that the appellant signed sales books in respect
of both purchases and he found that this was too much of a coincidence that the sales
books were kept by the two persons, pw.3 and pw.4 who purchased the oxen, as books that
they used in their normal course of business and the entries in the books show that they
were used in the normal course of business and were not in any way falsified.

We agree with the magistrate that there was something more in the terms of the case of
Emmanuel Phiri v The People (1) to support the conviction of the appellant. The appeal
against conviction is dismissed.

The appellant was sentenced to twelve years imprisonment with hard labour and ten strokes
of the cane. He was sentenced by a High Court judge because this is a second offence of
stock theft, and the mandatory sentence of seven years imprisonment with hard labour was
beyond the powers of the magistrate. As we have said in the case of Nkoloma v The People
(2) when considering whether to sentence an accused person for more than a mandatory
minimum sentence, courts should take note of the fact that the mandatory minimum
sentence imposed by Parliament covers a very broad spectrum of the type of offence for
which Parliament has declared that mandatory minimum. It is therefore necessary for courts
to consider very carefully before they impose any sentence above that imposed by
Parliament.

It is our view that the sentence of twelve years imprisonment with hard labour was so
severe that it comes to us with a sense of shock. However we do take note of the fact that
the appellant made a profit35 out of his own criminal activity and this is one of those cases
where the mandatory minimum sentence should be exceeded. We note moreover that the
appellant was sentenced to corporal punishment of ten strokes of the cane. As the learned
Chief Justice said in the case of Berejena v The People (3), corporal punishment should only
be imposed in exceptional circumstances. As this court said in Alakazamu v The People (4),
corporal punishment should only be imposed where the offence is so prevalent as to amount
to a serious outbreak of crime and other forms of punishment have ceased to have a
sufficient deterrent effect on members of the community. The appeal against sentence is
allowed. The sentence of ten strokes is set aside. The prison sentence is also set aside and
in its place we substitute a sentence of eight years imprisonment with hard labour with
effect from the 4th August, 1982.

Appeal Allowed in Part 36

CHRISTOPHER LUBASI MUNDIA v ATTORNEY-GENERAL (1986) Z.R. 37 (S.C.)

SUPREME COURT
SILUNGWE, C.J., GARDNER, AG. D.C.J., AND MUWO, J.S.
5TH AND 6TH MARCH, 1986
(S.C.Z. JUDGMENT No. 16 OF 1986)

Flynote

Civil Procedure - Inquiries Act - Interpretation thereof

Evidence - Administrative inquiry - Whether legal representation with a right to
cross-examination exists.

Headnote

The appellant was an advocate of the High Court and Board Secretary to the Zambia
National Provident Fund (ZNPF). Following a series of wildcat strikes at ZNPF, the President
established a Commission of Inquiry under the Inquiries Act, Cap. 181 to look into inter alia,
the call for the removal of the appellant from office. When the Commission started to gather
evidence, the appellant sought legal representation with a right to cross-examine witnesses,
but this was refused. He then moved the High Court for an order of mandamus, prohibition
or certiorari which was denied on the basis that this was an administrative inquiry and the
Commission was not bound by the rules of evidence and procedure.

Held:
(i) Under the Inquiries Act, a person whose conduct is the subject of the inquiry has a
mandatory right to representation while one who is in any way implicated or
concerned may be permitted to have legal representation.
(ii) Representation means the right of appearance of legal practitioners and other
persons.
(iii) In a public inquiry under the Inquiries Act, in order for it to be meaningful, legal
representation carries with it the right to cross-examination of witnesses.

Cases referred to:

(1) In Re Pergamon Press Limited [1971] Ch. 388
(2) O 'Connor v Waldron [1975] A.C. 76

Legislation referred to:

Inquiries Act, Cap. 181, S.12(1), 13, 14 (3)
Statutory Instrument No. 121 of 1984

For the appellant: M. Mwisiya, Mwisiya and Co.

For the respondent: B.L. Goel, Senior Statte Advocate, (amicus curiae)

Judgment

SILUNGWE, C.J.: delivered the judgment of the court.

This is an appeal against the refusal by a judge of the High Court to grant the appellant the
prerogative writ of mandamus. 37
The appellant is an advocate of the High Court and a Board Secretary to the Zambia
National Provident Fund (hereinafter referred to as the Z.N.P.F.), a parastatal body. We take
judicial notice of the fact that, during the periods May 3 to 8 and October 3 to 8, 1984,
many employees of the Z.N.P.F. went on wildcat strikes, principally demanding the removal
of the appellant from office, on allegations of tribalism and nepotism. In consequence of the
strike action, the President of the Republic of Zambia established a Commission of Inquiry
(hereinafter called the Commission) in terms of the Inquiries Act, Cap. 181, on October 19,
1984. The Commission comprised three members, including a judge of the High Court as its
Chairman, and was published in Statutory Instrument No. 121 of 1984. The Commission
was enjoined to:

"1. Inquire into the events and circumstances leading to the strikes by the
Zambia National Provident Fund workers during the periods 3rd to 8th May, 1984,
and 3rd to 8th October, 1984.

2. Establish the facts of and surrounding the said strikes.

3. Identify and establish the cause or causes of the said strikes.

4. Inquire into any other matters which appear to the Commission or relate to
the foregoing and which in the opinion of the Commission might, in the public
interest, be inquired into.

5. Make such recommendations with regard to the foregoing matters as the

Commission may, in the light of its findings, deem appropriate."

The terms of reference included a requirement that the "Inquiry shall be held in public."

When the Commission started to gather evidence, the appellant sought legal representation
with a right to cross-examine witnesses, but-this was refused. The appellant then moved
the High Court on an ex parte application for an order of mandamus, prohibition or
certiorari. However, the High Court, on its own motion, decided to hear the matter inter
partes; hence, the Attorney-General was directed to intervene. The hearing took the form of
affidavit evidence and submissions.
In his ruling, the learned trial judge relied on the judgment of Lord Denning, M.R. In Re
Pergamon Press Limited (1). That was a case in which the Board of Trade had appointed
inspectors under section 165 of the Companies Act, 1948, as amended by section 38 of the
Companies Act, 1967, section 38, to investigate the affairs of a company. The Directors
were required to decide or determine nothing but merely to investigate and to report its
findings to the Board of Trade. The Director of the company wanted to see the transcripts of
the witnesses who had spoken adversely of them and to see any documents which might be
used against them. They, or some of them, even claimed to cross-examine witnesses. In his
judgment, Lord Denning said at page 400 under letter B: 38
"In all this the directors go too far. This investigation is ordered in the public interest.
It should not be impeded by measures of this kind. Witnesses should be encouraged to
come forward and not hold back. Remember, this not being a judicial proceeding, the
witnesses are not protected by an absolute privilege, but only by a qualified privilege: see
O'Connor v Waldron (2)''

Later on the same page, he said this under letter F:

"It was suggested before us that whenever the inspectors thought of deciding a
conflict of evidence or of making adverse criticism of someone, they should draft the
proposed passage of their report and put it before the party for his comments before
including it. But I think this also is going too far. This sort of thing should be left to the
discretion of the inspectors. They must be masters of their own procedure. They should be
subject to no rules save this: they must be fair."

The trial judge ruled that, in an administrative inquiry, such as this one, "one cannot claim a
right to cross-examine a witness", adding that there were good reasons for that, one of
which being that, under section 13 of the Inquiries Act (Cap. 181) a commission of inquiry is
not bound by the rules of evidence and procedure. In the light of this, and, regard being
had to the fact that the remedies sought were discretionary, the trial judge held that none
of the remedies sought was available to the appellant. The appellant's application was
accordingly dismissed.

The issue for determination is not just whether the appellant is entitled to legal
representation, but also whether his legal representative has a right to cross-examine
witnesses.

Sector 12(1) of the Inquiries Act provides that:

"12.(1) Any person whose conduct is the subject of inquiry under the Act or who is in
any way implicated or connected in the matter under inquiry, shall be entitled to be
represented at the inquiry and any other person who may consider it desirable that he
should be so represented may, by leave of the commissioners, be so represented."

There are here two categories of persons. The first category consists of two types of
persons, namely (a) one whose conduct is the subject of the inquiry under the Act; or (b)
one who is in any way implicated or concerned in the matter under inquiry. The second
category relates to any person who may consider it desirable that he should be so
represented. Clearly, representation under the first category is mandatory; whereas
representation under the second category is permissive. There is no doubt that the
appellant was implicated and concerned in the matter under inquiry and so he was entitled
to be represented.

The question arises as to the meaning of representation, under the section. Mr. Goel has
argued that the term means self-representation. We disagree with Mr. Goel's interpretation
and accept Mr. Mwisiya's which is39 that the only meaning attributable to the term is
representation by another person. Indeed Wharton's Law Lexicon, 14th edition, defines
representation as "standing in the place of another for certain purposes ..."

It is noted that section 12(1) of the Act does not speak of legal representation. It simply
speaks of representation which means representation by any person who may include an
advocate. In our view the marginal notes which read:

"Appearance of legal practitioners and other persons” accurately conveys the

meaning of the term.

A crucial issue is whether the term representation under section 12(1) of the Act includes a
right to cross-examination. We have no difficult in resolving the issue for, in our opinion,
representation can only be meaningful if it carried with it the right to cross-examination,
even in situations where commissioners choose to receive evidence not on oath, since,
under section 13(1) of the Act, they are not bound by the rules of evidence or by the rules
of procedure of any court or tribunal and "may conduct their proceedings in such manner as
they think proper".

This case is distinguishable from In re Pergamon Press Ltd (1) in that there, the inquiry was
heard in private and the witnesses merely enjoyed qualified privilege; whereas here,
proceedings have been, and continue to be held in public and witnesses are entitled to
absolute privilege, in terms of section 14(3) of the Act, the relevant part of which reads:

"14 (3) ... every person shall, in respect of evidence given by him before the
Commissioners, be entitled to the same privilege so which he would be entitled if giving
evidence before the High Court."

What then is the effect of our decision? Mr. Mwisiya has indicated to us during argument
that he would be content with an order entitling him to receive copies of the record of
proceedings (presumably two: one for himself and the other for his clients to enable him to
peruse the record and to recall such witnesses as he may deem necessary for the purpose
of cross-examination. We accept Mr. Mwisiya's submission in part and direct that he be
entitled to a copy of the record of proceedings to the intuit and to a right to
cross-examination.

The appeal is allowed. As the inquiry has already taken more than one year to gather
evidence, we trust that efforts will be made by all concerned to expedite the remainder of
the proceedings in order to facilitate an early conclusion.

In view of the fact that the Attorney-General was brought into the proceedings, ostensibly
as an amicus curia there will be no order as to costs.

40
COUNCIL OF LEGAL EDUCATION v MORRIS MARCEL CHIKANGE SOKONI (1986)
Z.R. 41 (S.C.)
SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.
10TH APRIL AND 28TH MAY, 1986
(S.C.Z. JUDGMENT NO. 10 OF 1986)

Flynote

Administrative law - Certiorari - Severity of sanction - Whether appropriate procedure

Legal Practitioners - Council of Legal Education - Student Rules - Revocation of enrolment of
student - Procedure on complaint.
Legal Practitioners - Council of Legal Education - Student Rules - Disciplinary procedures -
Penalty of revocation.

Headnote

The respondent was enrolled as a student with the Council of Legal Education on 25th
August, 1975 after executing Articles of Clerkship, with his principal. During the currency of
the student's enrollment, the Council was called upon on three separate occasions to
consider disciplinary complaints against him. He was barred from taking his examinations.
After considering the complaint and exculpatory statement relating to the third incident, the
Council acting under Rule 26 of the Student Rules, decided to revoke the student's
certificate of enrollment. The respondent then moved the High Court for an order of
certiorari to quash the revocation. The Court granted the order solely on the ground that as
the complaint had been brought by the secretary who was not competent there was no
complaint before the Council and accordingly its proceedings and decision were nullities.

Held:
(i) Nothing in the Student Rules prevents the Secretary from presenting a complaint
reviewed by him nor the Council from being the direct complainant; and having
lodged a complaint, the Council is entitled to regulate its own procedure.

(ii) The Council has a general authority and jurisdiction under part III of the Legal
Practitioners Act and from the Student Rules to disallow a student from sitting for
examinations while considering the complaint against him; this action does not
constitute a second punishment.

(iii) Certiorari can be awarded where inter alia

- It is shown that there was a lack of jurisdiction
- there is an error of law on the face of the record
- there is a breach of any applicable rules of natural justice or there has been
some fraud or collusion and not on a complaint against the severity of a sentence or
sanction. 41
Legislation referred to:
Council of Legal Education, Student Rules, r.26 (1)(2)
Legal Practitioners Act, Cap. 48, s.7 (6) Part III
Supreme Court of Zambia Rules, Cap. 52 r. 71 (1)(b)

For the appellant: A. M. Hamir, Messrs Solly Patel, Hamir and Lawrence,
For the respondent: No appearance
Judgment

NGULUBE, D.C.J.: delivered the judgment of the court.

On 10th April, 1986 we allowed this appeal and said we would give our reasons later. This
we now do. It should also be mentioned that the appeal was heard in the absence of the
respondent in accordance with Rule 71 (1)(b) of the Supreme Court Rules since it was
shown to our satisfaction that the respondent had been notified. For convenience we will
refer to the appellant as the Council and the respondent as the student.

The facts of the case briefly stated were that the student was enrolled as such with the
Council on 25th August, 1975 having executed Articles of Clerkship with his principal.
During the currency of the student's enrolment, the Council was called upon on three
separate occasions to consider disciplinary complaints against him. The first was that in
1979 the student paid his examination fees by cheque which was dishonoured by the bank.
The student was reprimanded. The second was that in 1980 he was during an examination
in jurisprudence found in possession a booklet on the subject which he should not have
taken into the examinations room. He was debarred from taking two subsequent
examinations. The third and final incident occurred in February 1982, when two cheques -
for K10 and K7 - tendered by the student as examination fees were dishonoured by the
bank. He was called upon to explain the dishonour and to show cause why his enrolment
should not be revoked. The student duly made written explanation and appealed for
leniency and forgiveness. The Council considered the complaint and the exculpatory
statement and decided to revoke the student's certificate of enrollment.

The Council acted under Rule 26 of the Students Rules and this reads:

"(26)(1) If any complaint is made to the Council as to the conduct of any student or
any person who, having been enrolled as a student cut whose certificate of enrolment is
considered under these Rules to be of no effect and who applies to be re-enrolled (in this
rule referred to as a "former student") the Council may, after giving to the student or
former student an opportunity to be heard upon such complaint, and if it finds the complaint
to have been established:

(a) Admonish the student or former student and cause an entry of such
admonishment to be made against his name upon the Roll;

(b) Refuse to register the articles or further articles of the student or former
student, as the case may be; 42
(c) Postpone the date upon which the student or former student may sit for any
examination or any Head or Part thereof provided for in these Rules.

(d) Refuse to re-enrol the former student;

(e) Revoke the certificate of enrolment of the student.

(2) Any complaint to the Council shall be made to the secretary who shall refer
such complaint to the Council unless he considers it to be frivolous."
The student moved the High Court for an order of certiorari to quash the revocation of his
certificate of enrolment. He advanced four grounds and these were as follows:

1. There was no complaint before the Council against the conduct of the Applicant to
entitle the Respondent to inquire into the conduct of the Applicant contrary to Rule 26 of
the Student Rules 1973.

2. The applicant was disciplined more than once on the same set of facts first before he
was asked to exculpate himself after delivery of his exculpatory statement.

3. The Applicant's case was prejudged and the punishment preconceived before the
Applicant was given an opportunity to be heard in breach of the rules of natural justice.

4. The decision is generally harsh having regard to all the circumstances of the case.

The case was tried entirely on affidavit evidence and submissions. In relation to the first
ground, Counsel for the student in the Court below, argued in effect that when the officials
responsible for receipts and banking reported that fact of dishonour of the cheques to the
secretary of the Council such report was not a complaint and that when the secretary
brought the report to the Council's attention, that did not amount to a complaint being
lodged. The learned trial judge upheld this submission though on a somewhat different
argument. He found that the Council treated its secretary as a complainant and argued that
as sub-rule 2 of Rule 26 contemplated that complaints should be made to the secretary, the
latter could never himself be a complainant. The learned trial judge determined to the effect
that as the secretary was not a complainant, there was no complaint before the Council and
accordingly its proceedings and the decision complained of were nullities. He granted the
order sought by the student on that ground alone and therefore found it unnecessary to
deal with grounds 2, 3 and 4 which we have set out.43

On behalf of the Council, Mr. Hamir asked us to reverse the determination by the learned
trial judge. He argued that the officials who made the report to the secretary did lodge a
complaint and that all the correct procedures were observed in this matter. We have given
this issue due consideration and we are quite satisfied that the determination by the learned
trial judge cannot be supported and must be reversed. In the first place there is nothing in
Rule 26 or any other rule to suggest that a complaint to the Council against the student
must take any particular form or that a particular set of words or documents must be
employed for what is a complaint in fact to be regarded as a valid complaint. The student's
valiant argument that a report made by the responsible officials was not a valid complaint
was in our considered view wholly devoid of substance or merit and should not have been
entertained. But what is more important is the need for us to correct the erroneous
proposition likely to be gathered from the finding that the secretary could not present the
complaint to the Council and could never himself be the complainant. Once again there is
nothing in Rule 26(2) which precludes the secretary from presenting a complaint received
by him. If the facts were that the secretary and through him the Council it self was the
direct complainant, such as in this very case where the Council itself must be aggrieved by
the misconduct complained of, there is nothing in the rules which can be read as precluding
the Council from conducting disciplinary proceedings on its complaint. It cannot follow, as
argued by the learned trial judge, that because the sub-rule sets out a procedure to be
followed by complaining third parties, the Council is debarred from complaining of
misconduct against itself. We are satisfied that to the extent that the rules deal with
procedure they cannot be read as shutting the door when a situation arises which is not
specifically covered. In any case the Council is entitled to regulate its own procedure by
virtue of section 7(6) of the Legal Practitioners Act, Cap. 48.

Having reversed the learned trial judge on the one ground that he did consider, the question
arose whether we should remit the case back to him for a determination on the rest of the
grounds put forward by the student. However, we agree with Mr. Hamir's submission that
because all the evidence was contained in affidavits and all the submissions appear in the
record before us we are in as good a position as the learned trial judge was to resolve those
other issues. For that reason, we now proceed to consider the student's other grounds.

Under the second ground the student alleged that he was punished twice for the same
misconduct. When the third incident of misconduct was brought to his attention but before
the revocation was imposed, he was barred from sitting for an examination pending the
outcome of the disciplinary proceedings which had been set in motion. It was argued that
by barring him the Council imposed the penalty prescribed under Rule 26(1)(c). It seems
obvious to us, on the affidavits, that when the Council disallowed the student from taking
the examination, the Council was not imposing a sanction after finding against the student
on the complaint. It was common cause that the complaint was then still under
consideration. In our view, the action taken at the time, (which suspended 44the student's
rights and privileges), can only have been in the exercise of the Council's general
jurisdiction and authority over, inter alia, the student whose conduct and whose entire
position as student must necessarily have been in question. This general authority and
jurisdiction appears from part III of the Legal Practitioners Act as well as from the Students
Rules themselves. It is the function of the Council to be concerned with the personal
integrity and fitness of persons aspiring to become legal practitioners and it would be
untenable to argue that there was no power to prevent or to suspend participation in its
programmes by students facing what the Council considers to be a serious disciplinary
charge. We find against the student on this ground as well.

The third ground alleged in effect that, because it was mentioned in the Council's letter
calling upon him to exculpate himself that the Council was contemplating the imposition of
the most serious penalty of revocation, the student's case was prejudged and a fair hearing
unlikely. We do not think that, because an indication was given to the student that the
Council viewed the matter as grave enough to attract the maximum sanction, it can then be
armed that any representations made would be futile. On the contrary, fair notice having
been given, the student must be regarded as having then appreciated the gravity of the
position and the need to put in representations appropriate to the occasion. In the event he
did make such representations and the record does not support the contention that these
received short shrift. On the contrary, the Council's minutes on the record before us indicate
that the matter was considered fully and the particular penalty was imposed because having
regard to the student's attendants the Council "took a very serious view of the case". We
find against the student on this ground as well.

The fourth and final ground contended that the penalty was too harsh having regard to the
circumstances of the case. The penalty was one which the Council had power to impose and
there were no suggestions that the Council had acted in excess or without jurisdiction. We
do not see how certiorari can be the appropriate procedure for a complaint merely against
severity of a sentence or sanction imposed. The complaint in this regard could not therefore
afford a ground for certiorari which can be awarded only on certain grounds: for example,
where it is shown that there vitas lack of jurisdiction or there was an error of law on the
face of the record or there has been a breach of any applicable rules of natural justice or
where there has been some fraud or collusion, None of these issues arise. This ground is
also to be of no avail.
It was for these reasons that we allowed the appeal; reversed the determination below and
entered judgment for the Council with costs both here and below.

Appeal allowed.45

LIYONGILE MUZWANOLO v THE PEOPLE (1986) Z.R. 46 (S.C.)

SUPREME COURT
CHOMBA, AG. C.J., GARDNER, J.S., AND CHAILA, AG. J.S.
20TH MAY, 1986
(S.C.Z. JUDGMENT No.11 OF 1986)

Flynote

Criminal law and procedure - Fiat (consent) of D.P.P.

Where required by statute - Failure to obtain - Effect of.

Headnote

The appellant was convicted of official corruption contrary to section 94(a) of the Penal
Code. Consent of the DPP was not obtained for the prosecution as required by section 43 of
the Corrupt Practices Act.

Held:
Where consent by the DPP before any prosecution is a statutory requirement and the matter
goes to jurisdiction without such consent the trial is a nullity.

Cases referred to:

(1) Clarke v The People (1973) Z.R. 179
(2) R. v Bates 6 Cr. App. R 153

Legislation referred to:

Corrupt Practices Act, No. 14: of 1980, s. 43

For the appellant: M.W. Mwisiya, Mwisiya and Co.

For the respondent: A.B. Munthali, State Advocate.

Judgment

GARDNER, J.S.: Delivered the judgment of the court.

The appellant was convicted of official corruption contrary to section 94 (a) of the Penal
Code; the particulars of the offence being that on the 2nd day of May, 1983, at Sesheke,
being a person employed in the Public Service, namely in the Department of National Parks
and Wildlife as a hunter scout, by virtue of being such a hunter scout corruptly received one
cow for himself from one Siulu on account of a prosecution pending against the said Siulu
who was alleged to have committed the offence of using snares for hunting game animals.
This offence was committed after the Corrupt Practices Act 1980 came into force on the
14th December, 1982. In consequence the provisions of section 64(2) of that Act apply.
These provisions are as follows:

"Notwithstanding the repeal of the said sections of the Penal Code any offence
relating to corrupt practices committed by any person under any of the repealed provisions
or of any written law shall be deemed to be an offence committed under this Act."

Section 94 of the Penal Code is one of the repealed provisions, consequently this
prosecution should have been prosecuted under the Corrupt Practices Act, and section 43 of
that Act applies. Section 43 provides46 that no prosecution for an offence under Part IV of
the Act shall be instituted except by or with the written consent of the Director of Public
Prosecutions. The offence under section 25, which corresponds to section 94(a) of the Penal
Code, refers to corrupt practices by public officers and comes within Part IV of the Act.
Therefore, as Mr. Mwisiya has pointed out and as Mr. Munthali on behalf of the State has
very properly conceded, there should have been a fiat from the Director of Prosecutions
before this prosecution could be instituted. There was no such fiat in this case.

In the case of Clarke v The People (1), this court held that, for the purpose of Section 14 of
the State Security Act which requires the consent of the Director of Prosecutions before a
prosecution, the obtaining of such consent is mandatory and the matter goes to jurisdiction.
We referred in that case to the case of R v Bates (2) in which the Lord Chief Justice said:

"We are of opinion that the absence of the consent of the Attorney-General takes
away the jurisdiction of the court."

We confirm that view and, although our comments in the Clarke case were obiter dicta,
because, in that case, the Director of Public Prosecutions had implied his consent by signing
the charge sheet, we agree that in the absence of the consent of the Director of Public
Prosecutions, where it is a statutory requirement before any prosecution, the matter goes to
jurisdiction and if there is no such consent the trial is a nullity; as it was in this case.

The appeal is allowed, the conviction is quashed and the sentence is set aside. In view of
the fact that the appellant has already served two years imprisonment with hard labour
under the sentence imposed upon him, we do not consider that this is an appropriate case
for us to order a retrial.

Appeal allowed.

JAHAWAH SOMBHAI NAYEE v DOBBIN MUBANGA LUFUNGULO (1986) Z.R. 47

(S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.
29TH MAY, 1986
(S.C.Z. JUDGMENT NO. 12 OF 1986)

Flynote

Civil Procedure - Service of pleading by ordinary post - Receipt acknowledged - Whether

proper service.
Civil Procedure - Writ - Endorsement of - Need for full address for service.

Headnote

The defendant appealed against an order of the High Court dismissing his appeal from the
Deputy Registrar's ruling granting judgment in de-fault of defence in favour of the plaintiff.
The defendant failed on two occasions to serve his defence in good time upon the plaintiff.
The plaintiff claimed that the defendant's attempt to serve the plaintiff using ordinary post
was bad service and did not comply with the requirements for service by registered post
under 0.10 r 2(1) of the High Court Rules.

Held:

(i) It is sufficient to serve a document by ordinary post, as is the common practice

among lawyers in Zambia, provided there is an acknowledgment of such service from
the recipient.

(ii) Where the plaintiff has not endorsed a proper address for the service he cannot claim
improper service and it would suffice for the defendant to file his defence with the
District Registrar.

Legislation referred to:

(1) High Court Rules, Cap. 50, 0.10 r 2 (1), 0.7 r 1 (2) (c), 0.10 r 7.

For appellant: H.H. Ndhlovu, Jacques and Partners,

For the Respondent: In person.

Judgment

GARDNER, J.S.: delivered the judgment of the court.

This is an appeal against a judgment of a judge in chambers dismissing an appeal from an

order of the deputy registrar refusing an application to set aside a judgment in default of
defence.

The history of the case is that the plaintiff served a statement of claim in accordance with
the order for directions and thereafter the defendant did not serve on the plaintiff a defence
within the time laid down by the order. On the 16th of May, 1984, the plaintiff wrote a letter
to the district registrar at Livingstone applying for judgment ire default of defence. On the
17th of May, 1984, the defendant's advocates wrote a letter to the plaintiff enclosing the
defence and on the same day filed the defence with the district registrar in Livingstone. The
district registrar, without hearing the application for interlocutory judgment, declined to
enter judgment as the defence had already been filed in the registry and there after the
plaintiff appealed to a judge in chambers who ordered that the district registrar must hear
the application and sent it back for hearing. Thereafter the district registrar heard the
matter. At the hearing the advocate for the defendant conceded that the defence had not
been sent to the plaintiff by way of registered post in accordance with 0.10 r 2 (1) of the
High Court Rules of Zambia and applied for an extension of time within which to serve the
defence by way of registered post. The district registrar granted the application and gave an
extension of time for 21 days. Thereafter the defendant's advocates defaulted again and did
not serve the defence within the 21 days stipulated by the extension. The plaintiff then
applied again for judgment in default of defence and this was granted. The defendant then
appealed to a judge in chambers and48 the learned judge refused the application and
ordered that the judgment in default should stand. It is against that judgment of the High
Court judge that this appeal is now brought.

In support of the application for judgment in default the plaintiff swore an affidavit
exhibiting a letter dated the 17th May, 1984, from the defendant's advocates to the effect
that they were enclosing by way of delivery their client's defence.

Mr. Lufungulo, the plaintiff appeared on his own behalf in this appeal, has argued that
service by ordinary post is a bad service and a defence served in that manner is not a valid
defence. After hearing what this court had to say about the matter Mr. Lufungulo conceded
that any service could be good service provided the document was received, as was
admitted, but maintained that in view of the concession of the defendant's advocates at the
first hearing before the district registrar to the effect that it was admitted that service was
bad, it follows that the service must be treated as bad in all proceedings arising thereafter.

0.10 r.2 (1) reads as follows:

"2.(1) All writs, notices, pleadings, pleading orders, summonses, warrants and other
documents, proceedings and written communications, in respect of which personal service is
not requisite, shall be sufficiently served if left at the address for service of the person to be
served, as defined by Order VII and XI, with any person resident at or belonging to such
place, or if posted in a prevails registered envelope addressed to the person to be served at
the postal address for service as aforesaid . . ."

The provision as to mode of service is not exclusive. It is common practice between

practising lawyers in this country for service by ordinary post to be effected between their
respective offices and the need for service by registered envelope is solely to enable the
sender of the document to prove that he has served the document in case of default
proceedings. It is quite sufficient to serve a document by ordinary post provided that when
it comes to proof of service the appellant has an acknowledgment from the recipient or,
much more strongly as in this case, an affidavit by the recipient saying that he has received
the document.

We agree with the earlier ruling of the appellate judge of the High Court who found that the
district registrar could not dispose of an application for judgment in default merely by
saying that a document had been filed in the registry. He was bound to hear the application.
But in this particular case we are quite confident that on hearing this application he should
have been satisfied by the production by the plaintiff of the letter of the defendant's
advocates dated 17th of May, that the defence had been received by the plaintiff before he,
the district registrar, dealt with the application. In the circumstances the plaintiff would
have been entitled to his costs of having to issue the summons but he would not have been
granted judgment in default.49

One further matter which has come to our attention is that the writ which was issued in the
Livingstone district registry of the High Court was endorsed with an address for service of
the plaintiff in Lusaka. 0.7 r. 1(2)(c) provides as follows:

"A plaintiff suing a person shall endorse upon the writ of summons his place of
residence, his postal address and his occupation.

(2) If his place of residence and postal address are not more than five miles from the
Registry at which the writ is issued, either of such addresses shall be an address for service
for the purposes of these Rules, and if his place of residence and postal address or either
of them be more than five miles from such Registry, or if he has no place of residence or
postal address, the plaintiff shall also endorse on the writ of summons a proper place and
postal address or either of them, as the case requires, which shall not be more than five
miles from such Registry and either of the addresses within the limit aforesaid shall in such
case be his address for service."

0.10 r.7 reads as follows:

"7. Where no appearance has been entered for a party, or where a party or his
solicitor, as the case may be, has omitted to give an ad dress for service, all writs, notices,
pleadings, orders summonses warrants and other documents, proceedings and written
communications in respect of which personal service is not requisite may be served by filing
them with the Registrar."

In this particular case the plaintiff had not complied with these rules and, although we have
said that the service by ordinary post was sufficient because the document was admitted to
have been received, it would have been in order in this case for the defendant to have filed
the defence with the district registrar. In any event, in view of the fact that the plaintiff had
not properly endorsed a proper address on the writ he cannot be heard to say that service
was improper. In view of the order we are about to make we give the plaintiff leave to
amend the writ of summons by endorsing thereon a proper address for service within the
rules. We order that the amendment shall be made within twenty one days from today and
a copy of the amended writ be served upon the defendant's advocates within that time.

By consent this appeal is allowed, the judgment in default of defence is set abide. The
defence shall be deemed to have been properly served and this action will proceed to trial in
accordance with the order for directions.

As costs, Mr. Ndhlovu on behalf of the defendant has indicated that in view of the
concession by his colleague at the first hearing before the district registrar to the effect that
the defence had not been properly served, the defendant should be liable for costs up to
and including the50 last order of the district registrar. We order that these costs shall be
paid by the defendant on to the plaintiff. So far as the costs of this appeal are concerned we
are satisfied that the learned appellate judge had before him the argument that the defence
had in fact already been served. Accordingly, the costs before the learned judge in
chambers and in this court will follow the event and will be paid by the plaintiff to the
defendant.

Appeal allowed.

TATA ZAMBIA LIMITED v SHILLING ZINKA (1986) Z.R. 51 (S.C.)

SUPREME COURT
CHOMBA, AG. C.J., GARDNER AND SAKALA, JJ.S.
29TH MAY, 1986
(S.C.Z. JUDGMENT NO. 13 OF 1986)

Flynote

Civil Procedure - Judgment debt paid in full on execution - Setting aside of judgment -
Whether possible
Civil Procedure - Summons - Withdrawal of - Whether bar to later issue of similar summons.

Headnote

The defendant appealed against the refusal of a judge in chambers to grant an appeal
against a judgment in default of defence passed by the district registrar. An application had
been made to set aside judgment before the district registrar but was withdrawn upon the
basis that judgment had been perfected. A later application to set aside judgment was
refused by the district registrar on grounds that since the earlier application had been
withdrawn; a second one was an abuse of the process of court.

On appeal the Commissioner observed that this was no bar to the resuscitation of a claim;
however, refilling the same application was an abuse of court process.

Held:
(i) There is no law preventing the setting aside of a default judgment which appears to
have been perfected.

(ii) There is no rule of procedure preventing a party from with drawing and then taking
out a summons in exactly the same terms. It is therefore neither harassment nor an
abuse of court process.

Case referred to:

(1) Waterwells Ltd v Jackson (1984) Z.R. 98

Legislation Referred to:

High Court Rules, Cap. 50. 0.20
Rules of the Supreme Court, 0.320 r. 1-6 note 10, para. 3346.51

For the appellant: C.K. Banda, Lisulo and Co.

For the respondent: I.C.T. Chali, Mwanawasa and Co.

Judgment

GARDNER, J.S., delivered the judgment for the court.

This is an appeal from a judgment of a High Court commissioner sitting in his appellate
capacity in chambers on an appeal from an order of the district registrar refusing an
application to set aside a judgment in default of defence. In this judgment we will refer to
the appellant and the respondent as the defendant and the plaintiff respectively.

The history of this case is that a statement of claim was served on the defendant on the
24th of August, 1983 and, in accordance with the order for directions, the defence should
have been delivered by the 14th of September, 1983. On the 21st September, 1983,
judgment in default of de fence was entered against the defendant on the basis of an
affidavit by the plaintiffs advocates to the effect that the defence had not been received. No
application for leave to enter such judgment was made to the court or served upon the
defendant's advocates in accordance with Order 20 of the Zambia High Court Rules. The
defence was eventually sent to the plaintiffs advocates by post and received by them on the
3rd October, 1983. Thereafter the plaintiffs advocates proceeded by way of execution
against the defendant's goods and on the 8th of December, 1983, the defendant's
advocates filed an application to set aside the judgment in default of defence. On the 5th of
January, 1984, the advocates for both parties appeared before the district registrar and,
before the hearing of the summons to set aside was commenced, the district registrar
pointed out to both parties that a debit advice note dated the 12th December, 1983, had
been received from the sheriff indicating that the money had been paid in full by the
defendant.

Counsel for both parties today have said that they received the impression from the district
registrar that he was indicating that there was a law to the effect that no application to set
aside a default judgment can be entertained if the judgment had been perfected by the
levying of execution. In fact the district registrar's note reads:

"Judgment has thus been perfected."

Thereupon the advocate for the defendant said that he wished to withdraw the application
and the district registrar noted on the record "application withdrawn".

In this court Mr. Banda on behalf of the defendant has referred to paragraph 8 of the
defence which was filed, albeit out of time. This-paragraph clearly indicates that there is a
triable issue and Mr. Chali on behalf of the plaintiff very properly has indicated that he
does not seek to deny that there is a triable issue in this case.

Mr. Banda also pointed out that there was an application made on the 3rd of May, 1984, to
the district registrar to set aside the judgment in default. The district registrar in his ruling
said that in view of the fact that52 the original application, which was the same, had been
withdrawn the second application was an abuse of process of court, because the situation
had not changed and the judgment was still perfected. No authority was cited for the ruling
that the second application was an abuse of the process of the court.

On appeal to the learned commissioner in chambers the commissioner in his ruling gave as
his opinion that a withdrawal of an interlocutory application was the same as the withdrawal
of a claim or part thereof and no bar to its resuscitation. However he went on to say that in
his view the refilling of the same application was an abuse of the process of the court and
he dismissed the appeal against the district registrar's ruling. Again no authority was cited
for saying that the second application was an abuse of the process of the court and it is
from that judgment of the learned commissioner that this appeal is now brought.

0.32 r. 1-6 note 10 in the White Book contains the following words:

"There is no power to re-hear an application after any order made oil the hearing has
been perfected . . ."

It appears to us that both the district registrar and the learned appellate commissioner were
of the opinion that the second application to set aside a default judgment was to be treated
as a rehearing within the terms of that note. In fact the first summons on the 5th of January
was not heard at all; it was withdrawn after a very strong indication by the district registrar
that it could not be made. The reference to a judgment having been perfected therefore
does not apply. As we said in the case of Waterwells Limited v Jackson (1):

"The parallel which Mr. Gani sought to draw from Order 32, Rule 5 (3) of the Rules of
the Supreme Court of England (which it was said distinguishes a perfected judgment from
an interlocutory one) does not even arise when our own Rules, in Order 20 as a whole,
make it abundantly clear that any default judgment whatsoever may be set aside . . ."

So far as the reference to an abuse of process is concerned paragraph 3346 of the White
Book Vol. 2(1976 Edition) contains a note which reads as follows:

"The Court has inherent jurisdiction to stay proceedings which are an abuse of its
process, such as frivolous, vexatious or harassing proceedings or those which are manifestly
groundless or in which there is clearly no cause of action in law or in equity . . ."

In supporting the findings of the district registrar and the learned appellate commissioner,
Mr Chali has conceded that the filing of the second application to set aside the default
judgment was not frivolous or vexatious or manifestly groundless; but he does maintain
that to take out one summons, withdraw it and then to take out another in the same 53
terms is a harassing procedure, and, as the learned appellate commissioner pointed out,
there has to be a finality to proceedings somewhere.

We might agree with Mr. Chali were it not for the fact that he has also very properly
conceded that at the hearing of the first summons the district registrar himself pointed out
to the parties that he was of the opinion that there was a law preventing the setting aside of
a default judgment which appeared to have been perfected. In fact no such law exists. In
the circumstances we cannot agree that there was any harassment by taking out the second
summons. Whilst we consider that advocates should be capable of standing on their own
feet and knowing the law, we take note that where the presiding officer of a court indicates
his opinion of the law it must weigh heavily with the parties who are appearing before him.
We therefore find that there was no harassment in the taking out of the second summons
and there was therefore no abuse of the process of the court. There is no rule of procedure
which provides that a party may not withdraw a summons and later take out a fresh
summons in exactly the same terms. In the event of such an occurrence the party
duplicating the summons can always be penalised in costs. In some circumstances such as
this one, it might well be held that he has caused unreasonable delay, and such delay is one
reason under 0.2 r. 2 of the White Book for refusing to set aside a judgment on the grounds
of irregularity. In this particular instance the first summons was withdrawn on 5th January,
1984, and the second application was filled on the 23rd January, 1984. Having regard to all
those circumstances and the erroneous indication by the district registrar at the hearing of
the first summons we do not consider that there was any unreasonable delay.

We are satisfied that the delay of nineteen days in delivering the defence was not so great
that any reasonable court could have refused to set aside the default judgment on that
ground. Applying the principle, which has on many occasions been accepted by this court,
that actions, should come to trial and should not be prevented from so doing by
irregularities which can be cured without injustice (see Waterwells Ltd v Jackson (1), the
district registrar would have set aside one default judgment and penalised the defendant in
costs.
For these reasons the appeal is allowed, the judgment in default of defence is set aside. The
defence which has been received by the plaintiff's advocates will be treated as having been
served within time and the case will proceed in accordance with the order for directions.

Costs to the plaintiff up to and including the hearing of the first summons to set aside the
default judgment. Costs to the defendant there after up to and including this appeal.

Appeal allowed.54

ZAMBIA NATIONAL PROVIDENT FUND BOARD v CHIKAKO FORD KAMALONDO

(1986) Z.R. 55 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., CHOMBA AND GARDNER, JJ.S.
19TH JUNE, 1986
(S.C.Z. JUDGMENT NO. 14 OF 1986)

Flynote

Land lord and Tenant - Quiet enjoyment - Breach caused by another tenant - Effect of.

Headnote

The appellant was the Landlord of the respondent. The respondent sued the appellant for
breach of his right to quiet enjoyment of the promises in that on three occasions the
premises were flooded causing damage to the respondent's property. The lower court found
that the Landlord could not be exonerated from the flooding which was caused by a
structure put up by another tenant without authority.

Held:
Where another tenant of the same landlord causes a nuisance which interferes with a
tenant's quiet enjoyment, the landlord is not liable unless he actually participated in the
nuisance.

Case referred to:

Malzy v Eichholz [1916] 2 K.B. 308

For the appellant: M. Matakala, Z.N.P.F. Legal Counsel

For the respondent: R. M. A. Chongwe, Chongwe and Co.

Judgment

GARDNER, J.S.: delivered the judgment of the court.

In this judgment we will refer to the appellant as the defendant and the respondent as the
plaintiff respectively.
This is an appeal against a judgment of the High Court awarding damages to the plaintiff
arising out of the flooding of the premises leased by the defendant to the plaintiff. The facts
of the case are that the defendant leased the premises in a block of offices to the plaintiff
and after some years without any cause or complaint there were four instances of flooding
during the rainy seasons as a result of which the plaintiff alleged that he had suffered
damage to his property kept in the premises. The plaintiff complained about the damage
and was informed by the defendant that the damage had been caused by structural work
done by other tenants of the defendant in next door premises, which had interfered with the
drainage of rain water, resulting in the seepage of the rain water into the plaintiff’s
premises. They gave the name of the next door tenant allegedly responsible as Shaw's Auto
Electrical. The plaintiff, therefore wrote to Shaw's Auto Electrical claiming that they were
responsible for the damage and that the company replied to the effect that they had
constructed a structure next door to the plaintiffs premises but such construction had been
carried out by a firm called Intersum Development Limited and they were confident that any
damage55 caused to the plaintiffs premises by flooding could not have been as a result of
the erection of this structure. This denial was drawn to the attention of the defendant and
as a result they called for a report from their architects, a firm known as Architrave Limited.
This report was written on the 11th February, 1981 and indicated that the damage resulted
from the construction of a temporary structure next door to the premises as a result of
which the rain water was not properly drained away and at the same time the report
indicated that the roof of the premises was leaking and needed attention. There is no
evidence from the plaintiff that he ever saw this report and he subsequently issued a writ
claiming damages for a breach of covenant for quiet enjoyment by the negligence of the
defendant in carrying out repairs to the roof of the premises. The defence put in by the
defendant was a simple denial of the whole of the statement of claim and a denial that the
plaintiff had suffered any loss and damages at all. There was also a counter-claim for rent
which has not been dealt with in the appeal.

At the trial the plaintiff gave evidence that the premises were flooded and he said this was
due to work done by the defendant's workmen whom he recognised as being employed by
the defendant. The defence called a number of witnesses all of whom gave evidence that
the flooding to the premises was caused by the construction of the structure next door, and,
in particular, the architects called by the defence said that the leakage to the roof of the
premises referred to in the architect's report was not the cause of the problem of the
flooding. In his judgment the learned trial judge criticised the pleadings in the case and we
agree that the pleadings did not give effect to the purpose of pleadings, namely to set out
the disputed matters between the parties. The learned trial judge went on to say that he
had ascertained the facts from the correspondence and, inter alia, said that he found a
number of relevant facts were not in dispute. These facts included "the causes of the flood
as ascertained by the defendant's architects were a temporary structure constructed by the
defendant's other tenant and a leakage in the roof of the plaintiff’s offices." He went on to
say that he found the previous facts which were not in dispute as being proved. Finally as
regards liability the learned judge said this in his judgment: "In my view the defendant had
a duty to ensure that the roof over the premises leased to the plaintiff was well maintained
and that the plaintiff would be guaranteed a quiet anal peaceful enjoyment of the premises.
This they did not do. They were therefore in breach of their duty and therefore I find them
to have been negligent. The defendant cannot he exonerated on the ground or allegations
that the flood was caused by the structure put up by one of their tenants without authority."
Mr. Matakala on behalf of the defendant had argued in this appeal that the learned judge
misdirected himself when he said that it was not in dispute that one of the causes of the
flooding was a leakage in the roof of the plaintiff's offices. He said the defendant had
maintained through out that the leakage in the roof, if there was one, had not contributed
to any flooding whatsoever and that the whole of the damage was caused by the
construction of the structure by the defendant's tenant of the premises next door, which
structure was unauthorised by the defendant. He pointed out that there 56 was ample
evidence of the lack of authority for that structure. Mr. Chongwe on behalf of the
respondent maintained that it was correct that there were two causes for the flooding in the
premises but he agreed that the proportion which each cause bore to the damages suffered
had not been estimated or found by the learned trial judge. We agree with Mr. Matakala
that it was not common cause between the parties that either of them admitted that the
damages were due to the reasons set out by the learned trial judge and in this respect the
learned trial judge misdirected himself as to fact. Furthermore, although Mr. Chongwe has
very persuasively argued to the contrary, we construe the learned judge's conclusion to the
effect that he found it was the legal duty of the plaintiff to prevent the flooding of the
premises and it was no defence for the defendant to argue that the flooding had been
caused by a tenant of the defendant.

In the case of Malzy v Eichholz (1) it was held by the Court of Appeal that:

"A lessor is not liable in damages to his lessee under a covenant for quiet enjoyment
for a nuisance caused by another of his lessees because he knows that the latter is causing
the nuisance and does not himself take any steps to prevent what is being done. There
must be active participation on his part to make him responsible for the nuisance. A
common lessor cannot be called upon by one of his tenants to use for the benefit of that
tenant all the powers he may have under agreements with other persons."

We respectfully agree that this is a proper statement of the law. In this case the flooding of
the plaintiff’s premises was a nuisance, and consequently, if it was caused by another
tenant of the defendant without consent express or implied, the defendant would not be
liable for breach of the covenant for quiet enjoyment. It follows, therefore, that the learned
trial judge misdirected himself as to the law when he found that the defendant could not be
exonerated by the fact that the flooding was caused by the structure put up by another
tenant without authority. The result of the learned trial judge's misdirection to this effect
was that he did not resolve the issue between the parties as to whether the damage
suffered by the plaintiff was caused by the defendant, the other tenant or both. It is
impossible for this court to resolve that the issue of fact and both Mr. Matakala and Mr.
Chongwe have very properly indicated that in view of our finding as to the law it is proper
that this case be sent back for retrial.

The appeal is allowed. The judgment of the court below is set aside and the case is sent
back for retrial by another judge of the High Court. Costs will be in the cause.

Appeal allowed.57

GODFREY MIYANDA v ATTORNEY-GENERAL (1986) Z.R. 58 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., CHOMBA AND GARDNER, JJ.S.
24TH JUNE, 1986
(S.C.Z. JUDGMENT NO.15 OF 1986)

Flynote
Criminal Law and Procedure - Committal Proceedings - Raising of complaints by accused
before committal - Right of accused.

Headnote

The appellant sought an order of mandamus, which was refused by the High Court, to
compel the Subordinate court to allow him access to the DPP s fiat, certificate of summary
trial and charge, obliging him to be tried before the High Court and not the Subordinate
Court. It was his wish that he be tried before the lower court and claimed that it was
constitutionally wrong to deny him the right to be heard during the committal proceedings.

Held:

Although an accused person has a right to raise complaints which do not relate to the
validity of the charge against him this does not extend to the questioning his committal for
summary trial in the High Court where the offence disclosed by the charge is covered under
the schedule under s.11 of C.P.C., this limitation is not in conflict with Art. 20 (2) (d) of the
Constitution as the right to be heard is available during trial.

Case Referred to:

(1) Attorney-General v Shamwana and Others (1981) Z.R. 12

Legislation referred to:

Constitution of Zambia, Cap. 1, Art. 20 (2) (d)
Criminal Procedure Code, Cap. 160. ss. 254, 255
State Security Act, Cap. 110, s. 6 (2)(a)
Statutory Instrument No. 137 of 1973

Foe the Appellant: In person

For the respondent: A.G. Kinariwala, Principal State Advocate.

Judgment

CHOMBA, J.S.: delivered the judgment of the court: This is an appeal from a ruling of the
High Court upon the hearing of an application by the appellant for an order of mandamus
which was prayed for the purpose of directing the Subordinate Court of the first class
presided over by the senior resident magistrate at Lusaka to hear and determine objections
and complaints the appellant might wish to raise before committal to the High Court for
trial.

The appeal is based on a number of grounds but at the outset of the hearing of the appeal
before this court the appellant was asked to make clear what he really wished this court to
do in relation to the matter at issue. The appellant then informed this court that he had
wished to ask the trial magistrate to show him the flat from the Director of Public 58
Prosecutions, the certificate of summary trial and the charge that had been preferred
against him. He has also stated that he had wished to submit to the magistrate that the
charge that had been preferred against him was triable by the Subordinate Court.

For the purpose of clarity it should be stated that the charge that was before the senior
resident magistrate was one of retaining official documents contrary to Section 6(2)(a) of
the State Security Act, Cap. 110 of the Laws of Zambia.

In the course of arguing this appeal in this court the appellant has conceded that at the time
when he appeared before the magistrate he was unaware of the existence of Statutory
Instrument No. 137 of 1973. This Statutory Instrument had the effect of adding the
schedule that appears on page 170 of the Criminal Procedure Code, listing a number of
offences which are triable only by the High Court. Among the offences introduced by that
Statutory Instrument was the offence created by Section 6 of the State Security Act. It is
quite clear therefore that the particular submission that the appellant would have made if he
had been allowed by the magistrate to do so could not have been helped him at all. In other
words, it is quite clear that the offence that was charged and on which the appellant
appeared before the court of the senior resident magistrate was not triable by the
Subordinate Court. In the light of this the appellant cannot now persist in urging this court
to grant the order of mandamus tat he wished to have since his appeal to the High Court.

The appellant also contends that the senior resident magistrate should have given him the
opportunity to be heard and in particular an opportunity that he should request to examine
the fiat, the certificate of summary trial and the charge sheet. We can see nothing
objectionable in the Subordinate Court giving audience to the appellant for the purpose
indicated. However, it would appear to us that in terms of the law such an audience, if
given, could not allow or should not allow for a discussion as to the validity of the charge or
indeed the validity of the certificate of summary trial and fiat. We say this because it is quite
clear in terms of the language used in section 255 of the Criminal Procedures Code and this
language is to the effect that once the Subordinate Court has been presented with the
certificate of summary trial certified by the Director of Public Prosecutions, at that stage
whether or not a preliminary inquiry has been commenced, if it is a case where a
preliminary inquiry is necessary, the Subordinate Court shall forthwith commit the accused
for trial before the High Court. In our view the erect of section 255 is to oust the jurisdiction
of the Subordinate Court. To entertain a discussion of the substance of the charge is
tantamount to assuming jurisdiction and is contrary to the provisions of section 255,
Criminal Procedure Code. In our understanding, therefore, when learned Sakala, J., stated
in the case of the Attorney-General v Edward Jack Shamwana and Others (1) that sections
254 and 255 of the Criminal Procedure Code did not prohibit a Subordinate Court from
hearing any complaint by an accused person, he must be understood as meaning
complaints other than those designed to discredit the validity of a charge. Such a complaint
may be59 for example a complaint relating to any assault alleged to have been committed
against him by the arresting authority.

We notice that in the same case of the Attorney-General v Shamwana, headnote (iv) states
that the indictment (meaning an indictment in respect of which it is sought to commit an
accused person to the High Court for trial summarily) must disclose an offence. Before
headnote (iv) we notice that the report in the Shamwana case states that in that case the
Subordinate Court had held that the accused persons should be given the opportunity to
examine the indictment and raise any preliminary issue, if any, before committal to the High
Court for summary trial and indeed at page 22 of that report the learned judge did state
that the indictment must disclose an offence. It is our respectful view that in making that
dictum the learned trial judge misconstrued the law as it stands in section 255 of the
Criminal Procedure Code as read with section 254 of the same Code. In our view the best
that the Subordinate Court can do, if, upon giving an opportunity to an accused person to
address it, the accused raises an objection as to the validity of such charge is merely to
record such objection and nothing more. The court should thereafter commit the accused to
the High Court. If on the other hand the objection raised is for example that the accused in
the dock is different from the accused named on the charge then a different situation
altogether arises. In that case it would be quite proper for the Subordinate Court to release
the man in the dock as a wrong person different from the one named in the charge. In short
this court is saying that the Sub- ordinate Court finding itself in a situation such as the one
under discussion should not appear to muzzle an accused person, but that it should only
deal with the complaints raised within the limits that have been mentioned in clarifying the
law as it stands.

The appellant in this case has also addressed us on the question of what he considers to
be a contradiction between the provisions of section 255 of the Criminal Procedure Code as
it relates to summary trial and those of Article 20 of the Constitution of Zambia, in
particular clause 2 (d) of that article. That is the clause which provides that when a person
is charged with a criminal offence he must be given an opportunity to defend himself either
in person or by legal counsel. In his view the provisions of that article should be extended to
the person appearing before a court of committal. In his view, to the extent that the said
section 255 of the Criminal Procedure Code provides for summary trial it thereby violates
the rights of a person charged before a criminal court in that such person on summary
committal proceedings is not allowed to defend himself at the time of committal. The
function of courts of law is to interpret the law and not to make it in the manner that the
legislature makes laws. The court must follow therefore what the legislature in its wisdom
enacts as laws to govern proceedings in courts of law. The courts would be over-stretching
their powers if they were to translate laws in a manner contrary to the intention of the
legislature. But this is not to say that we uphold the contention that the provisions of the
Criminal Procedure Code and those of Article 20 Clause 2(b) of the Constitution of60
Zambia are in conflict. We are satisfied that when a man is committed for summary trial he
has still the right to defend himself at the trial. Similarly any question of discrediting the
charge can be raised at the trial. In our view there is no inherent prejudice occasioned to an
accused person who is committed for summary trial.

One other point made by the appellant in his submissions was that the reason he wished to
examine the fiat and the certificate of the summary trial was to satisfy himself that those
documents were properly signed by the Director of Public Prosecutions. He had been under
the impression, after examining copies of the fiat and the certificate of summary trial, that
the Director of Public Prosecutions had not in fact signed those documents.

At the hearing in this court the original case record before the senior resident magistrate
has been produced and we have satisfied ourselves that in fact those documents were duly
signed by the Director of Public Prosecutions.

After listening to the appellant we do not feel that it was necessary to call upon the
respondent's counsel to address us. This is so because it is quite clear, after examining all
the submissions of the appellant that the appeal lacks merit. In the result we dismiss it.

We have also considered the considered the question of costs and in all fairness we think
that although the appeal did not stand a chance to succeed the appellant has made his point
when he has said that the Subordinate Court should have given him audience. That being
so, we feel that the proper order in this case should be that each parts should bear its owe
costs and we order accordingly.

Appeal dismissed.
DULY MOTORS (Z) LTD v PATRICK KATONGO AND LIVINGSTONE MOTOR
ASSEMBLERS (1986) Z.R. 61 (S.C.)

SUPREME COURT
SILUNGWE, C.J., GARDNER AND MUWO, JJ.S.
7TH NOVEMBER, 1985, 3RD MARCH AND 5TH SEPTEMBER, 1986
(S.C.Z. JUDGMENT NO. 17 OF 1986)

Flynote

Tort - Negligence (assembler) Res ipsa loquitur - New car catching fire - Liability of
Manufacturer - "Manufacturer principle"
Damages - Loss by fire of brand new motor car - Calculation of damages -
Inflation - Order against car manufacturer tortfeasor who is capable of supplying new car.

Headnote

The Plaintiff purchased from the first defendant a motor vehicle which was assembled by the
second defendant. Ten days after purchase the vehicle developed a fault and was taken to
the first defendant’s garage for repairs which were effected within a day allowing the
plaintiff to collect the car and commence a trip to Ndola on the same day. On the way, the
car caught fire and was damaged beyond repair. In the court below the judge awarded
damages for negligence to the plaintiff against the first defendant who appealed. 61

Held:
(i) Where there are two defendants who are not responsible for each other's acts the
doctrine of res ipsa loquitur applies and it is not for the plaintiff to call evidence in
order to eliminate all possible causes of the fire.

(ii) Where there is no evidence of the reasonable probability of intermediate

examination, only the second defendant got liable to the plaintiff.

(iii) Where there has been inflation, as there has been in this country, a plaintiff who has
been deprived of something must be awarded realistic damages which will afford him
a fair recompense for his loss calculated at the value appropriate to the date of the
award.

Cases referred to:

(1) Roe v Ministry of Health [1954] 2 All E.R. 131
(2) Mahon v Osborne [1939] 1 All E.R. 535
(3) Evans v Triplex Safety Glass Company Limited [1936] 1 All E.R. 283
(4) Reed and others v Dean [1949] 1 K.B. 188
(5) Donogue v Stevenson [1932] A.C. 562
(6) Ozokwo v The Attorney-General (1985) Z.R. 218

For the Appellant: J. H. Jearey, Messrs D. H. Kemp & Co.

For the First Respondent: In person
For the second respondent.: C. K. Banda, Messrs Lisulo & Company

Judgment
GARDNER, J.S.: delivered the judgment of the court.

This is an appeal from a judgment of the High Court awarding damages for negligence to
the first respondent against the appellant. We refer to the appellant, the first respondent
and the second respondent as the first defendant, the plaintiff and the second defendant
respectively.

The history of this case is that on 21st August, 1979, the plaintiff purchased a Fiat 132 GLS
motor car registration No. AAD 5145 from the first defendant at the price of K7, 440. The
assemblers of the motor car were the second defendant and it was claimed that it was
under guarantee by the second defendant for six months from the date of purchase. On the
31st August, 1979, the car developed a fault known as preignition that is the engine
continued to run after the ignition was switched off. On the 31st August, 1979 at 0815
hours the plaintiff took the car to the first defendant's garage and requested that the fault
should be rectified. At 1245 hours on the same day, the plaintiff collected the car and was
told that the fault had been rectified. On the afternoon of the same day, the plaintiff drove
the car from Lusaka towards Ndola and, at Kafulafuta, approximately 270 kilometres from
Lusaka, the car caught fire and was a complete write-off. The plaintiff, in his statement of
claim, set out the above facts and claimed as follows: 62
"7. The plaintiffs car caught fire due to:

(a) The First Defendant's negligence, omission and/or failure to repair properly
the pre-ignition fault they detected.

(b) The Second Defendant's fault in manufacturing and/or assembling of the

plaintiff's vehicle.

(c) Alternatively, the second defendant divas in breach of warranty 7 which forms
part of the General Selling Terms. AND the plaintiff's claim is against the
defendants jointly or one of them for the sum of K7, 440 00 or replacement of
another Fiat 132 GLS plus damages."

The plaintiff gave evidence in accordance untie the facts we have outlined above and in
particular said:"Near Kafulafuta, I saw smoke coming out from the side of the bonnet of the
vehicle. I thought it was steam from boiling water. The instrument concerning the water on
the panel was normal. So I pulled aside and stopped and switched off the engine. I opened
the bonnet. When I lifted the bonnet, I saw a blast of fire from the engine compartment."
He then went on to say that he took his child out of the vehicle and obtained a lift from
another passing vehicle back to Kabwe leaving his own vehicle still burning. In
cross-examination by counsel for the second defendant the plaintiff denied that the vehicle
had caught fire because it had no water in the radiator. Further in cross-examination he said
that because it was a new car he had been warned by the salesman of the first defendant
not to exceed 40 kilometres per hour and he had not exceeded that speed.

The second witness for the plaintiff. Mr. John Edwards, was a workshop manager for Bosch
with qualifications in the motor industry. This witness had not seen the engine of the
plaintiffs car but he had seen a report on it by Mr. A Stocker with whim he had worked for
Diesel Electric Lusaka Limited. He gave evidence as to what would be likely to cause a fire in
a motor vehicle and what would be necessary to cure the fault of pre-ignition. In the latter
respect he said that pre-ignition could be caused by the maladjustment of the vehicle's
ignition timing, maladjustment of the float level in the carburettor or excessive carbon in
the cylinder head. He ruled out the last possibility because the car in question was brand
new. In particular, this witness said that if there was maladjustment of the carburettor, it
would be necessary to strip the carburettor to repair it, and this would entail removing the
fuel pipes from it. He said that in this type of vehicle the fuel pipes severe made of plastic
and not metal as in some other cases, but he said that this was common practice and would
not have caused any likelihood of fire. Front the facts of this case he deduced that the fire
had been caused by leaking petrol (and not by art electrical fault) and leakage occurred by
incorrect fitting of the plastic pipes or by a pipe being fitted in such a way that it caught a
moving object e.g. the fan-belt. Under cross-examination, this witness agreed that if a
person tried to repair the engine and used a naked flame while doing so, he could cause
fire, assuming that a petrol line had been disconnected.

The first witness for else first defendant. Mr. Isiah Miti, gave evidence that he was a
mechanic employed by the first defendant and he was called upon to rectify the pre-ignition
fault in the plaintiff's car. He said he63 first tested the timing with a stroboscope and
found that the timing was correct. He then started the engine and adjusted the screw on the
carburettor controlling the amount of petrol and found that by so doing he had cured the
pre-ignition fault. He said he did not disconnect the petrol pipes and did not bend or break
any fuel lines. In answer to a question by the learned trial judge, he said that, although it
was necessary when adjusting the petrol mixture screw also to adjust the air mixture screw,
in this particular case it was not necessary. In answer to a further question by the learned
trial judge he said that, although he had a machine to check the mixture for the carburettor,
it was not necessary to use it in this instance. The second witness for the first defendant
was Mr. Anderson, the Service Manager for Duly Motors, Lusaka, who said that he had
instructed Mr. Miti to rectify the pre-ignition fault on the plaintiff's car. He described how
ignition timing is tested, and said, in examination chief, that the mixture to the carburettor
is adjusted by adjusting the air mixture screw. He said that after the repair he took the
vehicle out for about twelve kilometres and, apart from a faulty speedometer cable
connection, which he thought had been deliberately disconnected, he found that the
pre-ignition problems had been cured. When questioned by the counsel for the plaintiff
about the job card in respect of the repair he agreed that normally a job-card was opened
but that it was not considered necessary in this case for a routine adjustment for
pre-ignition which was quite a common problem with this type of car. In future
cross-examination by counsel for the plaintiff, this witness said "We have the engine and
the gear box. . . Form the condition of the vehicle in which it was after it had caught fire it
was impossible to assess the cause of the fire. Mr. Bertolini of the second defendant had
examined the vehicle after it was burnt down and he made a report as to the possibility of
the cause of the fire. "I myself could not have been too sure as to what could have been the
cause of the accident. " In answer to a question by the learned trial judge, this witness said
it was not necessary to adjust both the air screw and the petrol screw on the carburettor
but it was normal that both screws had to be adjusted to supply the proper mixture.

Defence witness three, Mr. Mungaila, was a witness for the second defendant. He said he
was the service manager employed by the second defendant and was a qualified automotive
technician. He said that a Mr. Bertolini was formerly service manager and that he had
accompanied Mr. Bertolini to Kafulafuta on the 9th of October, 1979, when the vehicle was
inspected there. He said that it had been towed there by the police immediately after the
fire. He said further that he was amazed to find that the cam-shaft covers were missing. He
explained that the cam-shaft covers were also known as tappet covers and were made of
aluminium which would melt in a fire but that the cam-shaft holders were made of the same
material and although they had melted, there were still traces of them visible. He said that
he deduced from this that the tappet covers must have been removed to effect a road side
repair before the engine caught fire. The learned trial judge considered the question and
found that the plaintiff was an honest straight forward witness. He found that there was no
reason to doubt the plaintiff's version as to how the car64 caught fire and pointed out that
the first defendant's service manager, who had seen the car after the fire, gave evidence
that it was impossible to assess the cause of the fire despite the fact that he must have
noticed the absence of the tappet covers. Following this reasoning, the learned judge said:
"Taking into account that the engine had caught fire and was fuelled by petrol cannot be
ruled that the cam-shaft covers had in all probability melted completely." As a result, the
learned trial judge found that the fire had not been caused by any action of the plaintiff. He
also found "in absence of any evidence as to the manufacturer's assembly defect, I cannot
say whether the said fire was caused by the manufacturer's defect." In considering liability
of the first defendant, the learned trial Judge said:

"Having given careful thought to the matter, I consider that the probable cause of
the said fire was due to improper and vague adjustment of fuel mixture and the manner in
which the said repairs were carried out."

The reference to repairs was a reference to the rectifying of the preignition fault and, in
consequence, judgment was given against the first defendant. This appeal is against that
judgment.

Mr. Jearey, on behalf of the first defendant, argued that the doctrine of res ipsa loquitur is
not applicable where there are two or more defendants who are not responsible in law for
the acts of each other, as in this case, since the res does not point to negligence on the part
of any particular defendant. He cited the case of Roe v Ministry of Health (1). This is an
appeal before the Court of Appeal in England but the quotation cited to us was from a recital
of the judgment of the trial judge, McNair J, in which he said at page 133, that where an
operation was under the control of two persons not in jaw responsible for the acts of each
other, the doctrine of res ipsa loquitur could not apply to either person since res, if it spoke
of negligence, did not speak of negligence against either person individually. Somervell,
L.J., referring to this comment by the trial judge said at p. 135, "The learned judge said that
the principle could not apply to a case where the operation was, as he held here, under the
control of two persons not in law responsible for each other. Our attention was drawn to
some observations in Mahon v Osborne (2) which suggest that this is too widely stated".
Denning, L.J., went further at p. 137, and said:

"If an injured person shows that one or other or both of two persons injured him, but
cannot say which of them it was, then he is not defeated altogether. He can call on each
of them for an explanation:"

We are not, therefore, satisfied that the case cited on behalf of the first defendant is
authority for saying that the doctrine of res ipsa loquitur does not apply where there are two
defendants who are not at law responsible for each other as in this case.65

Mr. Jearey also referred us to the case of Evans v Triplex Safety Glass Co. Limited (3). In
that case, a motor car fitted with a triplex windscreen was purchased and, about a year
after the date of purchase, the windscreen suddenly and for no apparent reason shattered
and injured the occupants of the car. It was held by the trial court in that case that the
manufacturers were not liable for negligence for the following reasons:
(i) The lapse of time between the purchase of the car and the occurrence of the
accident;

(ii) The possibility that the glass may have been strained when screwed into its frame;

(iii) The opportunity for examination by the intermediate seller; and

(iv) The breaking of the glass may have been caused by something other than a defect in
manufacture.

In the course of the judgment in that case, Porter, J. said at page 286:

"It is true that, as Mr. Macaskie points out, in these cases he had not got to eliminate
every possible element, but he has got to eliminate every probable element. He has not
displaced sufficiently the balance of probabilities in this case."

Mr. Jearey argued that in this case there were a number of possible causes for the accident,
for instance, that the plaintiff may have been carrying spare petrol which leaked and caused
the fire. There was also the suggested cause that in view of the absence of the aluminium
cam-shaft cover, the plaintiff had been carrying out road-side repair when the fire broke
out. In this connection, the learned trial judge believed the plaintiffs account of the outbreak
of the fire, namely, that he noticed signs of burning so he stopped the car and, when he
opened the bonnet, there was a blast of flame. The possibility that the fire was caused by
the use of a naked flame near a leaking petrol pipe when the cam-shaft cover had been
removed was not put to the plaintiff. It was only suggested to him that he had put no water
in the radiator, and he denied this suggestion. We are satisfied that there is no reason to
interfere with the learned trial judge's finding that the fire was not caused by a road-side
repair. We are satisfied, as we have already indicated, that despite the fact that there are
two independent defendants in this case, the doctrine of res ipsa loquitur applied and that it
was not for the plaintiff to call evidence in order to eliminate all possible causes of the fire.

In Evans v Triplex Safety Glass Co. Limited (3), the judge gave four reasons why the claim
for negligence against the glass manufacturer could not succeed. Those were the lapse of
time; the possibility that the glass may have been strained when screwed into its frame, the
opportunity for examination by the intermediate seller, and that the breaking of the glass
may have been caused by something other than a defect in manufacture. The first two such
reasons do not apply in this case in that the fire occurred ten days after purchase and there
is no evidence of any interference with the engine other than the adjustment of one
petrol66 screw. The third ground in the Triplex case is not of course available to the first
defendant who was in fact the intermediate seller; and the fourth ground would not appear
to apply because no other possible causes of the fire had been put forward except the
possibility of a repair in proximity to a naked flame by the plaintiff, and in this respect,
having hear the evidence, the learned trial judge accepted the plaintiff's account of the
matter.

Mr. Jearey then went on to enumerate a number of instances whereby he armed that the
learned trial judge had misdirected himself in the evidence in finding that the fire must have
been caused by the work done at the first defendant's garage when the pre-ignition fault
was rectified. The learned trial judge apparently was of the opinion that in order to rectify
the pre-ignition fault it was necessary to adjust the air and petrol adjustment screws on the
carburettor. This was evidenced by the fact that he asked all the relevant witness whether it
was not the proper course to take, and when he arrived at this conclusion that the probable
cause of the fire was due to improper and vague adjustment of final mixture he apparently
thought that the adjustment of only the petrol screw was evidence of negligence. In fact,
Mr. Jearey has properly pointed out that all three witnesses, when questioned by the
learned trial judge about this type of adjustment said that, although it was usual for both
screws to b adjusted, it was not necessary for both screws to be adjusted. The principal
evidence in this regard, which was not contradicted by any other evidence, was that of the
mechanic himself who said that when he adjusted only the petrol screw the adjustment
cured the defect, and there was no need to adjust anything else. We agree further with Mr.
Jearey that there was no evidence whatsoever that the failure to adjust the air screw could
possibly, let alone probably, have caused the fire. The only evidence in this respect was
from the plaintiffs second witness, who was an expert in such matters, who gave evidence
that the fire was most probably caused by petrol ignition and this could happen by the
plastic petrol pipes being improperly affixed, or so affixed that they could come into contact
with a moving part such as a fan-belt. The evidence of Mr Miti, the first defendant's
mechanic, was that he did not touch the fuel pipes and did not do more than adjust one
screw on the carburettor. The plaintiff's claim against the first defendant was that the car
caught fire due to the first defendant's negligence, omission and or failure to repair properly
the pre-ignition fault they had detected. There is no evidence to establish the plaintiffs claim
alleging negligence by the first defendant and the learned trial judge's finding to this effect
cannot stand.

The appeal of the first defendant against the finding and judgment of the High Court is
allowed, and the judgment and order for damages against the first defendant are set aside.

We now come to the question of the possible liability of the second defendant for which
purpose leave was given to the plaintiff to cross-appeal against the learned trial judge's
finding that, in the absence of any evidence as to the manufacturer's assembly defect, he
could not say67 whether the fire was caused by such defect.

Mr. Banda on behalf of the second defendant argued that the learned trial judge was wrong
in finding against the suggestion by the witness called on behalf of the second defendant
that the fire must have been caused while the plaintiff was carrying oat a road-side repair.
We have already dealt with this argument and the suggestion put forward by Mr. Jearey on
behalf of the first defendant that there could have been a number of possible causes for the
accident, for instance, that the plaintiff may have been carrying spare petrol which leaked,
and in this respect we would refer to the case of Reed and Others v Dean (4), in which there
was a hire of a motor launch which caught fire causing damage to the plaintiff. That case
was treated as one in which the doctrine of res ipsa loquitur applied so that the onus was on
the defendant to show that the fire was not caused by negligence.

That case is applicable in the circumstances of the case at present before us and, as
between the second defendant and the plaintiff the doctrine of the res ipsa loquitur applies.
In view of the fact that the only explanation for the fire, the possibility of a road-side repair
has been rejected, the onus on the second defendant has not been discharged.

The second defendant has been sued as the manufacture of the vehicle. In Donoghue v
Stevenson (5), at page 599, Lord Atkin set out what has come to be known as "the
manufacturer's principle" to the effect that a manufacturer of products which he sells in
such a form as to show that he intends them to reach the ultimate consumer in the form in
which they leave him with no reasonable possibility of intermediate examination, and with
the knowledge that the absence of reasonable care in the preparation or putting up of the
products will result in an injury to the consumer's life or property, owes a duty to the
consumer to take reasonable care. As is said in paragraph 878 of the 13th Edition of Clerk
and Lindsell on Torts, in the light of a number of cases, the phrase probability of
intermediate examination" needs to be substituted in place of "possibility" in the formulation
of the rule. In this case, there is no specific evidence as to the intermediate examination of
the motor vehicle sold to the plaintiff but there was ample factual evidence that the vehicle
did pass through the hands of the first defendant as supplier of the vehicle and later as the
repairer of a minor defect.

Apart from the rejected hypothesis of a road-side repair in the presence of a naked flame,
the only evidence as to the possible cause of the fire came from the plaintiffs second
witness who gave his opinion that from the facts of this case the fire had been caused by
leaking petrol and the leakage occurred by incorrect fitting of the plastic fuel pipes or by a
pipe being fitted in such a way that it caught a moving object such as a fanbelt.

Mr. Jearey has argued on behalf of the first defendant that such examination as would take
place before the sale of the vehicle would not cover inspection of every fuel line to ensure
that there was no possibility68 of future leaks which might cause a fire. No evidence divas
put forward by any of the parties as to what type of examination was expected to be carried
out by the first defendant as suppliers of the vehicle. There was reference to the probability
of the intermediate examination in Donoghue v Stevenson (5), in our view refers to an
intermediate examination which would be expected by the exercise of clue diligence to
reveal the defect which was responsible for the damage. Further, since the probability of an
intermediate examination is in the nature of a defence to what would otherwise be the
absolute liability on the manufacturer, the onus of proving the expectation that such an
examination would reveal the defect is on the manufacturer, in this case, the second
defendant. It is apparent that the first defendant is an established seller of the second
defendant's motor cars and it may well be that the second defendant, as manufacturer,
gave instructions as to exactly what inspection must be carried out before delivery.
However, apart from the evidence of the second defendant's witness that pre-delivery
inspection involves general checking of all components, there was no evidence as to
whether such an inspection would be expected to reveal the defect which caused the
damage n this case. There was, therefore, no evidence of the reasonable probability of
intermediate examination within the terms of Donoghue v Stevenson.

We are satisfied that under the doctrine of res ipsa loquitur and the principle in Donoghue v
Stevenson, the second defendant is liable to the plaintiff for the loss by fire of the motor car
supplied to him.

The judgment as to the liability of the second defendant is set aside and we give judgment
for the plaintiff against the second defendant in damages for the loss of the motor car.

As to the quantum of damages, as we said in the case of Ozokwo v The Attorney-General

(6) where there has been inflation, as there has been in this country, a plaintiff who has
been deprived of something must be awarded realistic damages which will afford him a fair
recompense for his loss. In this case, the plaintiff’s loss is a motor car for which he paid K7,
440. The motor car was a Fiat 132 GLS and was lured new at the time of the loss. The
alternative to the claim for damages in the writ was replacement of the car and it is
probable that such a model is not now available from the defendant. It is our intention that
to make an award that will put the plaintiff in possession of a brand new car of as nearly as
possible the same value as the one he lost. We, therefore, order that the second defendant
do deliver to the plaintiff a new motor car of substantially the same value as the car that
was lost bearing in mind the inflation that has taken place since the date of the loss. In
default of such a vehicle being available to the satisfaction of the plaintiff, we order that the
second defendant pay damages amounting to the present value of a new car approximately
similar to the model which was lost. In default of agreement, there will be liberty to apply to
the registrar of the High Court to assess the damages in accordance with this judgment.
Costs in this court and in the court below will be paid by the second defendant.

Appeal allowed.69

ZAMBIA NATIONAL PROVIDENT FUND v YEKWENIYA MBINIWA CHIRWA (1986)

Z.R. 70 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., CHOMBA AND GARDNER, JJ.S.
10TH JULY, 1986
(S.C.Z. JUDGMENT No. 18 OF 1986)

Flynote

Administrative Law - Judicial Interpretation - Disciplinary rules of parastatal organisation -

Whether statutory.
Administrative Law - Natural Justice - Right to be heard - Failure to comply with
disciplinary rules - Effect of.
Employment - Dismissal - Non-Compliance with disciplinary rules - Effect of.

Headnote

The respondent, as the personal representative of one Godwin J Kamanga (deceased), who
was dismissed by ZNPF, his employers, upon his admitted dishonest conduct brought a
successful action in a lower court to nullify the dismissal due to non-compliance with ZNPF
disciplinary rules. The employers appealed.

Held:
(i) ZNPF procedural rules are part of the conditions of service of the parastatal
organisation and are not statutory.

(ii) Where it is not in dispute that an employee has committed an offence for which the
appropriate punishment is dismissal and he is also dismissed, no injustice arises
from a failure to comply with the laid down procedure in the contract and the
employee has no claim on that ground for wrongful dismissal or a declaration that
the dismissal is nullity.

Cases referred to:

(1) Glynn v Keele University and Another [1971] 2 All E.R. 89
(2) Contract Haulage Ltd. v Kamayoyo (1982) Z.R. 13

For the appellant: M.Matakala, Zambia National Provident Fund.

For the respondent: C.C. Mwansa, Legal Aid Counsel.
Judgment

GARDNER, J.S.: delivered the judgment of the court: This is an appeal from the judgment
of the High Court declaring that the dismissal of one Godwin J Kamanga by the appellants
was contrary to the procedure laid down in the regulations of the appellant's organisation
and holding that the dismissal was null and void.

The facts of this case are that Mr. Godwin J Kamanga, who prior to the commencement of
this action died and to whom we will refer in this judgment as the deceased, was employed
in the accounts department of the appellant's organisation. In early 1980, a sum of money
was found to be missing from the funds for which the deceased was responsible and on 70
the 8th of May, 1980 a letter was written by the respondent to the deceased referring to his
failure to account for the sum of K4,734.85n and stating that he would be suspended
pending the outcome of investigations. At the same time the matter was put in the hands of
the police. On the 14th of May, 1980, the deceased wrote to the appellant urging the
withdrawal of the matter from the hands of the police on the grounds that a number of
other instances of loss of money had occurred in the appellant's organisation and it would
be bad for the appellant's image for these losses to come to light. That letter finished with
the words "I know I am guilty but you can do something." The deceased also paid K1, 000
in respect of the discrepancy in his accounts and gave the appellant a cheque for the sum of
K3, 800 which cheque was dishonoured on presentation.

On the 14th July, 1980, the appellant again wrote to the deceased to the effect that
investigations had disclosed that the total discrepancy, in his accounts amounted to K24,
637.96. The letter contained the following words:

". . .This amount is too large to be lost by an individual in a public institution and no
Management can tolerate such a situation. You are therefore guilty of misconduct, under
Regulation 10 (m) of the Board's conditions of service regulations. It has because of the
seriousness of the offence been decided to terminate your employment with the Board in
accordance with Regulation 17 (c)(i) win effect from the date of your suspension, 8th May,
1980.... "

The respondent as personal representative of the deceased caused an originating summons

to be issued calling for a judicial interpretation of Regulation 16(a)(b)(c) and (e) of the
Zambia National Provident Fund Board's conditions of service regulations. Regulation 16
reads as follows:-

"16. Suspension and prohibition from carrying out duties (a) An employee
suspected of misconduct, or against whom criminal proceedings have been instituted may
be prohibited by the Director from carrying out the duties of his post, and the prohibited
shall remain in force until cancelled by the Director or otherwise under these Regulations.
(e) If the employee against whom the order of prohibition or suspension has been made
under this Regulation on the ground that criminal proceedings are were instituted against
him is acquired of the crime or is not brought to trail, the order of prohibition or suspension
shall remain in force pending the conclusions of any proceedings taken against him on the
charge of misconduct, and if no such proceedings taken, the director shall cancel the order
of prohibition or suspension and the employee shall thereupon be entitled to be paid the full
amount of his salary for the period of subsistence of the order of suspension, less any
allowance paid to him under70A paragraph (c) above . . ."
In the affidavit in support of the originating summons the deponent thereto claimed
principally that the interpretation sought was that of sub-regulation (e).

In the affidavit in opposition filed on behalf of the appellant it was averred that the
deceased had been dismissed on the grounds of misconduct and not on the grounds that
criminal proceedings had been taken against him and reference was made to regulation 17
of the regulations. Regulation 17 reads as follows:

"17. Inquiries into Charges of Misconduct of an Established Employee -

(a) An allegation of misconduct against an established employee shall be

investigated without delay by the Director and subject to the provisions of
paragraph

(b) of Regulation 16 a charge of misconduct shall thereafter be preferred

against the employee, and when such charge is preferred the employee
shall be called upon to answer the charge in writing within a stated
period;

(c) If the employee charged with misconduct is found guilty by the Director,
the Director may cancel any prohibition or order of suspension in force
under regulation 16 in relation to the employee, and may further

(i) Discharge the employee; or . . ."

The rest of the regulation is not relevant to this judgment.

In due course the deceased was found not guilty of the charge of theft brought against him
by the police in respect of the sum of K4, 739.85 which was the amount of the discrepancy
in his accounts referred to in the appellant's letter of the 8th May, 1980.

In his judgment the learned judge found that investigations revealed that the deceased had
misappropriated K24, 637.26n but no charge of misconduct was preferred against the
deceased and the deceased was dismissed without calling upon him to answer the charge in
writing within a stated period; the director did not consider the charge as there was none
and the director did not decide whether or not the deceased was guilty of misconduct. The
learned trial judge therefore found that the director did not make a finding that the
deceased was guilty of misconduct and that the deceased dismissal without giving him an
opportunity to be heard was contrary to regulation 17. It is against that finding and the
finding that the dismissal was null and void that this appeal is now brought.

It is apparent that the learned trial judge did not in fact consider the interpretation of
Regulation 16(e) as called for in the originating summons, but we are satisfied that during
the course of the proceedings before him and in the affidavits prior to the proceedings the
question of the proper procedure under Regulation 17 was raised.We are further
satis71fied that so far as the discrepancy relating to a total of K24,637.26 is concerned no
charge relating to that total sum was preferred against the deceased. He was not called
upon to represent himself thereon and accordingly we agree with the learned trial judge
that in this respect the provisions of Regulation 17 were not complied with. So far as the
earlier discrepancy of K4, 738.85 is concerned it is not clear whether an actual charge was
preferred against the deceased but it is clear that after he was suspended by the letter
dated the 8th of May,1980, he wrote a letter in mitigation dated 14th of May, 1980, in
which he confessed to his guilt in respect of that sum and the learned trial judge in his
judgment found that the letter referred to was a confession of misappropriation of the
money.

Miss Mwansa on behalf of the respondent has argued that the letter dated the 14th of
July,1980, indicated that the deceased was dismissed in respect of the total sum
K24,637.26n, and that he never had an opportunity to make representations in respect of
this sum. Mr. Matakala on behalf of the appellant argued that the deceased was dismissed
for misconduct, and as he had in fact been guilty of misconduct the appellant was entitled to
dismiss him.

In the case of Glynn v Keele University and Another (1), a student was disciplined by the
Vice Chancellor of the University without compliance with the procedure laid down by the
University statute before imposing such discipline. It was held in that case that the rules of
natural justice had not been complied with in that the student had not been given a chance
of being heard before the decision was reached to inflict the penalty upon him. However the
plaintiff in that case had suffered no injustice in that it was not disputed that the offence
had been committed by him. The offence was one which merited a severe penalty and the
penalty was intrinsically the proper one; consequently it was held that the plaintiff had no
right of redress.

We respectfully agree with the finding in that case and consider that it applies to the
situation in this appeal. Where it is not in dispute that an employee has committed an
offence for which the appropriate punishment is dismissal, but the employer dismisses him
without following the procedure prior to the dismissal laid down in a contract of service, no
injustice is done to the employee by such failure to follow the procedure and he has no
claim on that ground either for wrongful dismissal or for a declaration that the dismissal was
a nullity.

The deceased by his own admission was guilty of the offence of theft for which the
punishment of dismissal was a proper one. The fact that the internal provisions of the
appellant's organisation were not complied with in no way resulted in an injustice to the
deceased.

It is pertinent to refer here to the case of Contract Haulage Limited v Kamayoyo (2), in
which this court held that where there is a statute the specifically provides that an employee
may only be dismissed if certain proceedings are carried out, or where there is some
statutory authority for a certain procedure relating to dismissal, a failure to give an
employee an opportunity to answer charges against him is contrary to natural justice and a
dismissal in those circumstances is null and void. In that case we did not take into
consideration the situation which would arise where, despite a failure to comply with a
certain procedure before taking disciplinary action, no injustice resulted, but, apart front
this, we confirm that that judgment states the law as it relates to a dismissal being ultra
vires and in consequence null and void. Where the procedural requirements before
disciplinary action are not statutory but merely form part of the conditions of service in the
contract between the parties, a failure to follow such procedure would be a breach of
contract and could possibly give rise to a claim for damages for wrongful dismissal but
would not make such dismissal null and void.

In the case at present before us although the appellant is a parastatal organisation its
conditions of service are not statutory and in the circumstances no declaration could be
made that the dismissal was null and void for failure to comply with the appropriate
procedure.

The appeal is allowed and the declaration to the effect that the deceased's dismissal is null
and void is set aside.
Costs in this court and in the court below will be the appellant's.

Appeal allowed.

LOVE CHIPULU v THE PEOPLE (1986) Z.R. 73 (S.C.)

SUPREME COURT
SILUNGWE, C.J., CHOMBA AND GARDNER, JJ.S.
12TH AUGUST, 1986
(S.C.Z. JUDGMENT No. 19 OF 1986)

Flynote

Evidence - Identification - Single (identifying) witness - Opportunity to observe - Fleeting

glimpse - Reliability.

Headnote

The appellant was convicted of aggravated robbery contrary to section 294 (1) of the Penal
Code. It was alleged that he and a person unknown attacked and robbed the sole
prosecution witness. The witness who during the attack briefly saw and claimed to have
known the appellant previously, searched for and found the appellant at his home and
identified him to the police. At the trial the appellant elected to remain silent and called no
witness.

Held:
Where the circumstances of an attack are traumatic and there is only a fleeting glimpse of
an assailant, the fact that an appellant had been patronising the same bar as an accused for
the past nine months does not render an identification safe.73

Cases cited:
(1) Chimbini v The People (1973) Z.R. 191
(2) Champion Manex Mukwakwa v The People (1978) Z.R. 347
(3) R. v Turnbull and Others [1976] 3 All E.R. 549

Legislation referred to:

Penal Code, Cap. 146, s. 294 (1)
Supreme Court of Zambia Act, Cap. 52 s. 15 (1)

For the Appellant: W. L. Henriques, Assistant Senior Legal Counsel,

For the Respondent: R. R. Balachandran, Senior State Advocate

Judgment

SILUNGWE, C.J.: delivered the judgment of the court. The appellant was convicted on one
count of aggravated robbery, contrary to section 294(1) of the Penal Code, Cap. 146, the
allegation being that on January 1st, 1984, at Chingola, the appellant, jointly and whilst
acting together with another person unknown, stole one pair of gents shoes, one pair of
long trousers, one skipper, one belt, one identity card and K3.50n in cash, altogether valued
at K109.75n, from Henry Nkole, and that immediately before or immediately after the time
of such theft did use or threaten to use actual violence to the said Henry Nkole.

The principal issue that arises in this case is one of identification. Evidence was given at the
trial by the complainant, Henry Nkole, in which it was stated that on January 1st, 1984, at
about 23.30 hours as he was returning home from a bar, he heard footsteps, looked in the
direction of the footsteps, saw two people and as soon as he did so they attacked him with
an iron bar and a hose pipe. They continued to attack him until he became unconscious.

When he regained consciousness, he discovered that all the clothes as well as shoes had
been taken from him. He went to the police station and made a report. Thereafter, he was
taken to hospital for treatment and then driven to his home. He continued to attend hospital
as an outpatient.

On the 16th January, he started to look for his assailants whom, according to the evidence,
he had previously known for nine months as he and they had been patronising the same
bars. He found the appellant sitting outside a house is Kapisha compound, went back to the
police station and informed the police about him. On the following day, the police went and
picked up the appellant and charged him with the present offence, which he denied.

The appellant, having had his rights explained to him at the close of the case for the
prosecution, elected to remain silent and to call no witnesses as he was entitled to do.

In his judgment, the learned trial judge held that the appellant had been correctly identified
by the complainant as he had previously been known to him.74

On behalf of the appellant, Miss Henriques has argued before us that there is no evidence as
to the state of light at the time of the robbery and that, as such, it is not possible to say
whether the light was strong or dull; that if it was strong, the complainant, who was walking
towards it, may have been dazzled and, therefore, unable to see his assailants properly. If,
on the other hand, the light was dull, he could not have recognised his assailants, especially
as the light was some thirty yards away from the spot where he was attacked. She has
argued that the evidence on record shows that, as soon as the complainant saw the
assailants, he was set upon, that as the attack was sudden, there was no opportunity for
the complainant to identify his assailants.

In his judgment, the learned trial judge gave the impression that the complainant had seen
the assailants, identified them and thereafter been attacked. He went on to say that, in the
circumstances of the case he was satisfied that the complainant had had "ample
opportunity" to see his assailants and that the question of mistaken identity was ruled out.
In Chimbini v The People (1), the forerunner to this court - the Court of Appeal - said as
follows in relating to single identifying witness cases:

"It is always competent to convict on the evidence of a single witness if that

evidence is clear and satisfactory in every respect; where the evidence in question relates to
identification there is the additional risk of an honest mistake, and it is therefore necessary
to test the evidence of a single witness with particular care. The honesty of the witness is
not sufficient; the court must be satisfied that he is reliable in his observation. Many factors
must be taken into account, such as whether it was daytime or night time and, if the latter,
the state of the light, the opportunity of the witness to observe the appellant, the
circumstances in which the observation was alleged to have been made . . ."

And in Champion Manex Mukwakwa v The People (2), we said this at page 348, lines 39 to
41:

"The circumstances in which the offence was committed were undoubtedly traumatic and
the opportunities for observation of the culprits were poor. . ."

In the present case, there can be no doubt that the circumstances in which the robbery was
committed were traumatic. There was, in the words of the complainant himself, a "sudden
attack" upon him: as soon as he heard footsteps on his left had side, he looked in that
direction and was then suddenly attacked by two assailants. In our view, the circumstances
in which the attack took place were traumatic and such that the complainant could not have
had a good opportunity to observe his assailants, regard being had to the fact that it was
night time. The prosecution evidence is deficient in that it does not shed light on whether or
not the state of the light was good or bad, strong or dull. Quite clearly, there was a
misdirection on the facts on the part of the trial court when it found that there had been
"ample opportunity" for the complainant to75 identify his assailants. The complainant
undoubtedly had a fleeting glimpse of the assailants and the attack was sudden. Although
the complainant testified that he had known his assailants for about nine months prior to
the robbery, this does not help the prosecution's case be cause the offence was committed
in traumatic circumstances and the opportunities for observation were poor. As it was
pointed out in R v Turnbull and Others (3) at page 552, letter d:

"Recognition may be more reliable than identification of a stranger; but, even when
the witness is purporting to recognise someone whom he knows, the jury should be
reminded that mistakes in recognition of close relatives and friends are sometimes made."

Much, therefore, depends on the quality of the identification evidence. As we have pointed
out in this case, the quality of the identification evidence was poor.

In the circumstances of this case, we are unable to apply the proviso to 15(1) of the
Supreme Court Act as it would be unsafe, for the reasons given, to allow the conviction to
stand. The appeal against conviction is allowed; accordingly, the conviction is quashed and
the sentence is set aside.

Appeal allowed.

FAUSTINO LOMBE v ATTORNEY-GENERAL (1986) Z.R. 76 (S.C.)

SUPREME COURT
SILUNGWE, C.J., NGULUBE, D.C.J., AND MUWO, J.S.
10TH DECEMBER, 1985 AND 16TH SEPTEMBER, 1986
(S.C.Z. JUDGMENT NO. 20 OF 1986)

Flynote
Constitutional Law - Detention - Grounds of detention - Detainee's name incorrect - Effect of
Constitutional Law - Detention - Grounds of detention - Failure to publish in Government
Gazette within time limit - Effect of Constitutional Law- Detention - Place of detention -
Detention in unauthorised place - Effect of Damages-Habeas Corpus - Claim for damages for
unlawful detention - Not available on hearing of habeas corpus application.

Headnote

The respondent was detained on the 29th July, 1981, on the ground that he with other
(whose names were given) had conspired to rescue persons who were detained on
allegations of having attempted to over throw the lawful government of the Republic of
Zambia. The detainee contended that the detention order included a name which was not
his between his first and last names and that therefore, it was not intended to detain him.
He also argued that the notice of his detention was not published in a regular issue of the
Government Gazette but in an76 extraordinary issue published mid-week. The other
ground of appeal was that other persons detained with the appellant had been released
which, it was argued, was an indication that the appellant's detention was punitive. The
appellant also asked for damages for unlawful detention on the grounds that for a period he
detained in a police station which was an improper place of detention.

Held:
(i) A superfluous name does not nullify a detention order if there is evidence that it was
intended to detain the person in fact detained.
(ii) There is no constitutional requirement that the publication of a detention shall be
valid only when it is published on a Friday in an ordinary Government Gazette.
(iii) The release of other persons who featured prominently in the grounds for the
appellant's detention does not ipso facto render the grounds for his detention
inoperative.
(iv) Detention in an unauthorised place does not nullify a Presidential detention order.
(v) Damages for an unlawful period of detention cannot be claimed in a habeas corpus
application.

Cases referred to:

1. Albert Nana Mhlanga v The Attorney-General [1982/HP/154]
2. Kanoobhai Ashaubhai Patel v Kazimile Kakese Kanongesha [1971/HN/1032]
3. Nkanza v The Attorney-General [1981/HN/633]
4. Munalula and Others v The Attorney-General (1979) Z.R. 154
5. Puta v The Attorney-General (1983) Z.R. 114.

For the Appellant: G. Kunda, Malik & Company.

For the Respondent: F. Mwiinga, Senior State Advocate.

Judgment

SILUNGWE, C.J.: delivered the judgment of the Court: The appellant was detained on July
29th, 1981, pursuant to a detention order under the hand of the President in terms of
Regulation 33(1) of the Preservation of Public Security Regulations. Notification of his
detention was published on August 12, 1981, well within the period specified under Article
27(1)(a) of the Constitution. On the 10th of that month, the appellant was served with
grounds for his detention the gist of which was that he had conspired with others (whose
names were given) to rescue persons who were in detention on allegations of having
attempted to overthrow the lawfully established Government of the Republic of Zambia. In
July, 1983, the appellant made an application before the High Court for the issue of a writ of
habeas corpus ad subjiciendum. Having considered the application, Lewanika, J., dismissed
it. It was against that decision that the appellant appealed to the Supreme Court.77

There were nine grounds of appeal initially filed; of these, five only that is, grounds 1, 2, 3,
6 and 7, will be considered as the rest of them were abandoned prior to the hearing of the
appeal. These are the same grounds that had unsuccessfully been argued before the High
Court. It was contended on the first ground that the learned trial judge had erred by holding
that the Presidential detention order and the statement of grounds for detention referred to
the appellant and, in particular, that the inclusion of the name Chinkangalika in the
appellant's names was superfluous; and further, it was contended that the trial court had
not adequately considered the effect of misdirection of the appellant's names.

It was common ground that both the Presidential detention order and the statement of
grounds for detention contained the names Fostinos (Faustino) Chinkangalika Lombe but
that the appellant's affidavit filed on June, 15th, 1983 and his National Registration Card
exhibited to this affidavit of November 1st, 1983, both gave the appellant's names as
Faustino Lombe. Mr Kunda argued that the correct names of a detainee must correctly be
reflected in the detention order as well as in the grounds for detention in order to satisfy the
provisions of Article 27(1)(a) of the Constitution. He contended that the service of a
detention order and of grounds for detention which reflect incorrect names, as in this case,
raises the possibility of a wrong person being detained. He further argued that a detainee's
name must, as matter of obligation, be hundred per cent correct, and that, anything short
of this requirement makes the detention unlawful. In Mr. Kunda's submission, the person
intended to be detained was someone other than his client, as the detention order and the
grounds for detention did not meet the requirement referred to above.

In resolving the issue raised under the first ground of appeal, we wish to draw attention to
the appellant's affidavit filed on July 18th, 1983, to which reference has already been made,
and in which the appellant averred that, although his name was Faustino Lombe, people
commonly called him Faustino Lombe. In our judgment, the reference to the name Fostinos
(Faustino) Chinkangalika Lombe in the detention order and the grounds for detention was a
reference to Fostinos alias Faustino Chinkangalika Lombe. It being common cause that the
appellant's name is Faustino Lombe, the question arises whether the inclusion of the name
Chinkangalika in the detention order and in the grounds for detention meant that the person
intended to be detained was not the appellant but someone else. There was evidence in the
court below, in the form of an affidavit sworn by Senior Superintendent Yanda, to the effect
that the name Chinkangalika had been given to the Police by the appellant himself.
However, when the learned trial judge addressed him self to the question under
consideration, he came to the conclusion that it was the appellant who had been intended to
be detained and that, in any event, the Chinkangalika was superfluous. In doing so, he
followed a decision in the unreported case of Albert Nana Mhlanga v The Attorney-General
(1) in which the High Court had held that the inclusion of the name "Mushanga" was
superfluous. We uphold the learned trial judge's78 finding as we are satisfied that the
person intended to be detained was the appellant. This case is distinguishable from the
unreported cases Kanoobhai Ashaubhai Patel and Kazimile Kakese Kanongesha (2), Nkanza
v The Attorney-General (3) in that the former, the only name appearing in the detention
order was Patel, and, as the learned trial judge observed in that case, "the possibility could
not be ruled out that a wrong Patel might have been arrested since the detention order
carried only the name of Patel and since it is public knowledge that there are countless
persons known by that name." and, in Nkanza, the detainee filed an affidavit in which he
denied that the names given by the detaining authority were his and the State did not file
any affidavit in opposition which led the court to accept the evidence contained in the
detainee's unchallenged affidavit. But, in the present case, an affidavit in opposition was
filed.

In concluding our consideration of this ground, we would like to express the view that,
while it is necessary that a detention order as well as grounds for detention should
adequately reflect the name of a person intended to be detained, it would be over-zealous
to insist that if the name is not one hundred percent accurate the validity of the detention
would, for these reason alone, be vitiated in all cases. Each case must be dealt with on its
own merits for what is crucial is that the court must be satisfied as to the identity of the
person intended to be detained.

On the second ground of appeal, it was submitted that the trial court had erred in holding
that the paper on which the appellant's name had been published was a Government
Gazette in terms of Article 27(1)(a) of the Constitution. The basis of the submission was
that the appellant's detention was unlawful because it had been published on a Wednesday
as a "Special Government Gazette" consisting of a single piece of paper, instead of having
been published on a Friday as an ordinary Government Gazette in a magazine form as was
usually the case. It was further submitted that the Constitution does not authorise the
publication of detentions in "Special Government Gazettes" as they are (allegedly) not
available to the public but to a limited number of persons within Government circles; but
that publication in an ordinary Gazette was in order.

It is common knowledge that the purpose of publishing a person's detention in a

Government Gazette is to inform members of the public of such detention. This is an
important safeguard against detainees being held incommunicado. There is, however no
Constitutional requirement at the publication of a detention shall be valid only when it is
made on a Friday in an ordinary Government Gazette. Article 27 (1)(a) of the Constitution
states that:

"27(1) Where a person's freedom of movement is restricted or he is detained, under the

authority of any such law as is referred to in Article 24 or 26, as the case may be, the
following provisions shall apply:
(a) . . .79

(b) Not more than one month after the commencement of his restriction or
detention a notification shall be published in the Gazette stating that he has
been restricted or detained and giving particulars of the provision of the law
under which his restriction or detention is authorised."

As can clearly be seen, the Constitution makes no discrimination between an ordinary

Gazette and a special one. In any event, an affidavit sworn by her Timothy Mwanza, the
Government Printer established that the special Gazette in which the appellant's detention
was published was an official Gazette published with the authority of Cabinet Office. It
suffices, therefore, that a person's detention is published in a Government Gazette, it being
immaterial whether the publication is made in an ordinary or special Gazette or whether this
is achieved on a Friday or on any other day of the week.

A Gazette, whether it be ordinary or special, on a single page or in form of a magazine, is a

public document; it is not a secret or a private document. As such, it is available to any
member of the public who has the ability to pay for it or who receives it as a gift or visits a
public library.

The learned trial judge did not in any way misdirect himself on the issue as the appellant's
detention had been published in conformity with the provisions of Article 27 (1)(a) of the
Constitution.

The question raised under the third ground of appeal, namely, that the trial court erred in
holding that the name published in the Government Gazette did not amount to a
misdescription need not be discussed as this has, by implication, already been considered
and resolved under the first ground.

The sixth ground attacks the learned trial judge's finding that the appellant's continued
detention was not punitive and that the release of Geoffrey Hamaundu, General Kabwe and
other detainees, had not made the grounds for his detention cease to operate; and in
holding that it was up to the detaining authority to release or continue to detain the
appellant.

The contention here is that, under Regulation 32(2) of the Preservation of Public Security
Regulations, the President has power to revoke or vary a detention order as he may think
fit. But that, in view of the provisions of Article 26 of the Constitution, the President may
continue to detain a person only if it can be shown that the continued detention does not
exceed anything which, having due regard to the circumstances prevailing at the time, can
reasonably be thought to be required for the purpose of dealing with the situation in
question. Mr. Kunda went on to say that, although there was a Detainees' Tribunal to review
cases of detainees from time to time, its recommendations were not binding on the
President, and so, he may continue to detain a person for life by continually rejecting the
Tribunals' recommendations. In order to guard against this danger, it was submitted that
the court should have power80 to enquire into the reasonableness of the continued
detention of a detainee. It was further argued that, in view of the release of the detainees
to which reference has already been made, the appellant's continued detention was punitive
and, therefore, unlawful.

In our opinion, the release of Geoffrey Hamaundu and other persons who featured
prominently in the grounds for the appellant's detention does not ipso facto render the
grounds for his detention inoperative as such a situation simply relates to changed
circumstances in the appellants detention. We would like to stress that, once a person is
lawfully detained, any subsequent change in his circumstances will not render the detention
unlawful or give rise to an argument in a court of competent jurisdiction that his continued
detention is no longer necessary. The rationale here is that courts of law have no power to
enquire into the reasonableness of a detainee's continued detention, for such power is
vested in the Detainees' Tribunal whose jurisdiction it is, inter alia, to consider a detainee's
subsequent changed circumstances and to make recommendations to the detaining
authority.

In Munalula and Others v The Attorney-General (4), we said, at page 166, lines 29 to 37
(per Baron, D.C.J.):

"If the original detention was lawful, as in my view it was since I do not regard the
grounds as vague, subsequent changed circumstances will not render it unlawful ab initio.
And furthermore it is specifically the function of the tribunal to which I have referred to
make recommendations to the detaining authority on the basis of any changed
circumstances; it would not be competent for this court to entertain any argument based on
changed circumstances, or in other words that it was no longer necessary for the detention
to continue."

Mr. Kunda was aware of our decision in Munalula but argued that this court should reverse
itself on the ground that a court order was more helpful than a tribunal's recommendation
and that we should look at changed circumstances in relation to the provisions of Article 26
of the Constitution.

As we see it, Article 26 of the Constitution gives no support to Mr. Kunda's proposition and
there is no basis for overturning Munalula. This being the position, we consider that the
learned trial judge's finding on the issue canvassed under this ground is impeccable.

Finally, it is canvassed in the seventh ground of appeal that the learned trial judge should
have held that the appellant's detention was unlawful for the period that he was detained at
Chilanga Police Station cells thereby entitling him to damages.

It is not in dispute that, on August 10th, 1981, between 06.00 and 17.00 hours, the
appellant was transferred from Lilayi Prison to a nearby Chilanga Police Station. Here we
agree with the submission made on the appellant's behalf that his detention during the prior
in question was81 unlawful. However, it is conceded by his learned counsel that such
detention did not, on the authority of Puta v The Attorney-General (5), nullify the
Presidential detention order. The only remedy asked for is damages.

As indicated at the very beginning of this judgment, this was an application for writ of
habeas corpus ad subjiciendum. We wish to say that a writ of habeas corpus is not one that
attracts, nor is it intended to attract, damages. Puta's case is to be distinguished because it
was a petition founded on the Constitution in which certain remedies, including damages,
were prayed for. In this case however, and for the reasons stated, the appellant is not
entitled to claim damages in habeas corpus proceedings.

This appeal is dismissed. We propose, however, to make no order as to costs in this Court.

Appeal dismissed82

ANNIE BAILES v CHARLES ANTONY STACEY AND ANIERICA SIMOES (1986) Z.R. 83
(S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA J.J.S.
10TH AND 11TH JUNE, AND 16TH SEPTEMBER, 1986
(SCZ JUDGMENT NO. 21 OF 1986)

Flynote

Trust law - Inheritance - Unmarried Couple - Beneficial interest of surviving partner -

Factors.

Headnote
The appellant cohabitated with one Domingos Assuncao (now deceased) for many years.
The appellant sold her house and out of the sale she gave the deceased 500 pounds to pay
off the mortgage on the property in issue but this did not discharge the mortgage. For five
years she helped the deceased service the mortgage and finally the deceased discharged
the mortgage with 200 pounds given by the Appellant. The Court below held that she did
not contribute in the actual acquisition of the house, that it was not the intention of
deceased at the time of the purchase to create any beneficial interest for the Appellant and
that the moneys given to the deceased by the Appellant were but loans.

Held:

To establish a constructive trust there must be evidence that the property was acquired to
provide a home for a couple who intended to live together in a stable relationship, and that
the claimant made a substantial contribution towards the acquisition.

Cases referred to:

(1) Cooke v Head [1972] 2 All E.R. 38
(2) Eves v Eves [1975] All 3 E.R. 768
(3) Richards v Dove [1974] 1 All E.R. 888
(4) Bernard v Josephs [1982] All E.R. 162
(5) Pettitt v Pettitt [1969] 2 All E.R. 385 [1970] A.C. 777
(6) Gissing v Gissing [1970] 2 All E.R. 780 [1971] A.C. 886
(7) Gordon v Douce [1983] 2 All E.R. 228
(8) Burns v Burns [1984] 1 All E.R. 244

For the Appellant: J.B. Sakala and Company .

For the first Respondent: H.K. Smallwood, Smallwood and Company.
For the second Respondent: L.P. Mwanawasa, Mwanawasa & Company.

Judgment

NGULUBE, D.C.J.: delivered the judgment of the court: The facts and history of this case
can be stated very shortly. The learned trial judge from whose decision this appeal comes
either accepted or did not reject the following salient facts. In 1956 Annie Bales (hereinafter
called the plaintiff) met Domingos Assuncao (hereinafter called the deceased). At the time
the plaintiff had six children from a previous marriage and was living in a house which she
owned. Unknown to the83 plaintiff, the deceased had left a wife and children in Portugal
but was living alone in an apparently temporary structure on a property known as S/D D6 of
S/D Y4 of Farm 748 "Njo" in Ndola the subject of this suit. The two developed an intimate
relationship and paid regular visits to each other. Meanwhile in 1958, the deceased started
building the house on the plot referred to and completed construction in 1960. The
deceased borrowed 500 pounds from a Building Society to enable him to complete the
construction. When the house was completed, the deceased invited the plaintiff to cohabit
with him. She moved in with her children and the two parties herein henceforth lived
together as an unmarried couple but otherwise to all intents and purposes as man and wife.
They so lived together until the deceased died in 1978. The deceased left a Will made on
28th January, 1971, in which he left everything he had to his lawful wife whom he had left
in Portugal and of whom the plaintiff had been unaware.

Sometime after and during the time of cohabitation, the plaintiff sold her own house for a
sum between £1,500 and £1,700. She gave the deceased £500 to pay off the mortgage but
this amount did not discharge that debt. For five years in alternate months, from 1960 to
1966, she helped the deceased service the mortgage by paying sums between £10 and £20
per month. The learned trial judge found that she must have made at least 30 such
payments. Eventually the plaintiff gave the deceased a sum of £200 to finally discharge the
mortgage. It was not made very clear exactly when these various sums were paid by the
plaintiff but the learned trial judge accepted that she did pay those amounts. The £500,
£200 and the 30 instalments of £10, or £20 and averaging £15, that is £450, add up to
£1,150.

When the deceased died and the plaintiff - who was then and is now well advanced in age -
discovered that she had been excluded from any share of the estate of her consort of many
years she commenced the proceedings in this case. In her action, she sought a declaration
to the effect that she had a beneficial share in the house which the deceased and, in turn
the first respondent, held in trust for their joint benefit as regards any proceeds of sale,
rents and profits. She also sought a declaration that all the household goods in the house
were her "absolute property". In relation to the latter prayer, the learned trial judge granted
a declaration arguing that, even though he found that not all the items were hers, she
should have them because of the length of time she lived with the deceased. We say
nothing more about these household goods since this appeal was confined to the claim in
respect of a share in the house.

In relation to the house, the learned trial judge determined to the effect that there was no
evidence of any intention on the part of the unmarried couple that the plaintiff should
acquire any beneficial do interest in the deceased's house; that the money which she spent
did not entitle her to any share and that such money, though not given as a gift, must have
been loans to the deceased. The learned trial judge held that the plaintiff did not contribute
anything towards the acquisition of the plot where the house was built nor towards its
construction. He84 therefore argued that to the effect that, since the deceased had
already completed building the house when the plaintiff moved in with him, the 500 pounds
which she paid first was simply a loan and was referred to as such by the plaintiff. He
further reasoned that the subsequent payments made towards the mortgage must all have
been loans because it was unlikely that the deceased, who had single handedly completed
construction, could have received the money with a view to granting a share to the plaintiff.

On behalf of the plaintiff, Mr. Sakala has armed to the effect that, on the facts which we
have set out and on the authorities to which we shall shortly turn the plaintiff had a
beneficial interest in the house. His submission was that on the facts and in the
circumstances of this case, the plaintiff had made substantial contributions towards the
acquisition of the house and that the deceased must be found to have become a
constructive trustee of her beneficial interest. He therefore urged us to reverse the learned
trial judge and to find for the plaintiff. On behalf of the second respondent, the wife in
Portugal, Mr. Mwanawasa supported the determination below. The gravamen of Mr.
Mwanawasa's argument was that there was, in his case, no evidence of any joint effort in
the acquisition of the house nor any intention at the time of such acquisition of the two
setting up home together. He submitted to the effect that, as the deceased had already
acquired her house before the parties began to live together her financial contributions
could not imply an agreement between the parties to confer on the plaintiff any beneficial
interest. Mr. Mwanawasa contended that for a mistress to acquire any beneficial interest in
the quasi-matrimonial home, there must be not only a joint effort but also an initial
intention that the house is to be acquired by the parties for the purpose of providing a home
for them in their unmarried union. It was, therefore, Mr. Mwanawasa's submission that a
mistress who moves into a house after it has already been acquired can never acquire a
beneficial interest. He relies on the authorities to be discussed shortly where the facts were
that the unmarried couple had agreed and deliberately set out to acquire a house with a
view to set up home in it.

It is quite possible that this may be the first time when this court has been called upon to
decide a case of this nature. However, we observe that in England at any rate such cases
are fairly common and we have sought assistance from the English cases including those
cited both in this court and at the trial. That a mistress can in certain circumstances be
granted a share in the unmarried couple's house seems to have been settled by a number of
decisions. Thus in Cook v Head (1), a man and his mistress together decided to acquire land
and build a bungalow. The plot was purchased by the man in his own name and he raised
some money on a mortgage. The mistress did not contribute any money. Together they
planned the bungalow and together they built it with the help of some labour. The mistress
put in a lot of physical world personally. Both parties in that case saved all the money they
could from their separate earnings which they pooled together and which was used, among
other things, to service the mortgage repayments. The mistress was given a one-third share
in the85 proceeds of sale. The court held in that case that the constructive or resulting
trust imposed by the courts on the legal owner in the case of husband and wife who by their
joint efforts acquired property to be used for their joint benefit applied to a man and his
mistress who acquired peppery by their joint efforts with the intention of setting up home
together and, accordingly, the man held the property on trust for himself and the mistress
beneficially. In that case a view was expressed that the correct approach was not to look at
the money contributions of each and dividing the beneficial interest according to those
shares but look at the matter more broadly in the same manner as the court would in a
hushed and wife case. Cases where a mistress was given a share because the parties had
together agreed to acquire property and by their jolt efforts did acquire such property with a
view to set up home include Eves v Eves (2). In this case the man raised the entire
purchase price. But it was in evidence that they had specifically agreed to acquire to the
property as their home and that both would have beneficial interest. The man had led the
mistress into accepting that the house should be in his sole name because, as he told her,
she was under age. The mistress did a lot of physical work to effect major repairs and
improvements to the house. She was awarded a beneficial interest of one-quarter, the court
holding, among over things, that because of the man's conduct and because of all she had
done for him and their children, it was just and fair that she should have a beneficial
interest. Thus where an intention to set up home is coupled with a joint effort which is of a
substantial nature, a party to an unmarried union has been able to gain a share. But where
the contribution is absent or is not such as to amount to joint effort by both parties, a
share must be denied: See for instance Richards v Dove (3). We have also had occasion
to peruse the case of Bernard v Joseph (4), a more straight forward case where the
unmarried couple bought a house in their joint names and on a joint mortgage which each
helped to service. It was held, among other things, to the effect that where the couple lived
in the house as if married and where there is evidence that the parties had conducted their
affairs in such a way that the court is satisfied the relationship was intended to involve the
same degree of commitment as a marriage, the share of the beneficial interest in the house
to which each was entitled can be ascertained according to the same principles applicable to
a married couple. On that basis, the court in Bernard freely referred to the decisions and
dicta in husband and wife cases to resolve the issue in that case. In the course of delivering
his judgment in Bernard, Griffiths, L.J., said something which may well be useful in our
present case. He said at page 170 to page. 171:

"It emerges clearly from the speeches in Pettit v Pettitt (5) and Gissing v Gissing
(6) that it is the intention as to the beneficial ownership at the time the house is bought
that is crucial and the contributions made by the parties to the acquisition are examined to
establish that intention: See Pettit v Pettitt (1969) 2 ALL E.R. 385 at 394, 400, 408, (1970)
A.C. 777 at 800, 807, 816 per Lord Morris. Lord Hodson and Lord Upjohn: and see also
Gissing v Gissing (1970) 2 ALL E.R. 780 at 783, 786, 787, (1971) A.C. 886 at 898, 900,
902 per Lord Morris, Viscount Dilhorne and Lord Pearson. It might in exceptional
circumstances be inferred that the parties86 agreed to alter their beneficial interests after
the house was bought; an example would be if the man bought the house in the first place
and the woman years later used a legacy to build an extra floor to make more room for
their children. In such circumstances the obvious inference would be that the parties agreed
that the woman should acquire a share in the greatly increased value of the house produced
by her money. But this depends on the court being able to infer an intention to alter the
share in which the beneficial interest was previously held; the mere fact that one party has
spent time and money on improving the property will not normally be sufficient to draw
such an interference: see Pettit v Pettitt.''

We have also referred ourselves to - Gordon v Douce (7) where Fox, L.J., said at page 230:

"As to the first question, what the court is concerned with in such a case as this is
whether, by reason of an implied or resulting trust the applicant is entitled to a share in
property vested in the other party. That is dependent on whether the parties have so
conducted themselves, that it would be inequitable to permit the party in whom the
property is vested in law to deny that the other party has a beneficial interest. In deciding
that matter, it seems to me that exactly the same principles would apply whatever the
relationship between the parties. As Lord Dilhorne observed in Gissing v Gissing [1970] 2
All E.R. 780 at 785, [1971] A.C. 886 at 899, there is not one law of property applicable
where a dispute as to property is between spouses or former spouses and another law of
property where the dispute is between others."

We should also mention that the learned trial judge made reference to Burns v Burns (8).
We propose to quote from the summary of the appellant decision which the learned trial
judge set in his judgement. This reads:

"It was HELD that when an unmarried couple separated, the powers conferred by the
Matrimonial Causes Act 1973 in relation to division of the property of married couples on
divorce did not apply, and accordingly the court had no jurisdiction on the basis of the fair
and reasonable division of property. Instead where property had been purchased in the
man's sole name without the woman making any direct contribution to the purchase price or
without the parties making an agreement or a declaration regarding the beneficial interest
in the property, there was a prima facie inference that the man was the sole legal and
beneficial owner. That inference could only be displaced if the court imputed, from the
conduct of the couple down to the date of their separation, a common intention that the
woman was to have beneficial interest in the property, and that in turn depended on
whether the woman had made a substantial financial contribution towards the expenses of
the couple's household which could be related o the acquisition to the property, e.g., 87
where her financial contribution to the household expenses enabled the man to pay
the mortgage installments. The court would not impute a common intention that the Plaintiff
was to have a beneficial interest in the property merely from the fact that she had lived with
the Defendant for 19 years, had looked after the family's well - being by performing the
domestic duties of the household and had brought up their children, or from the fact that
she had bought chattels for the household out of her earnings and had redecorated the
house."

On the authorities, it is clear that the principles to be applied in ascertaining the existence
or otherwise of any alleged resulting or constructive trust in a case of this nature are the
same which would apply to any relationship be it man and wife, man and mistress or even
friends or brothers. That the actual relationship is a factor to be taken into account cannot
be disputed. The nature of a constructive trust is such that every ascertainable
circumstance and every relevant fact should be taken into account if, by imputation of
equity, a transaction which the parries may have entered into without thought or realisation
of legal consequences becomes the subject of a claim against the party in whom the legal
title to property is vested by the other who asserts that he has acquired a beneficial
interest. The constructive trust is a creature of equity and may be imposed in order to
satisfy the demands of justice and good conscience. In a case such as this, the authorities
indicate that evidence is required to show a number of relevant factors. Thus, quite apart
from cases where there was obvious agreement, there must be evidence of an intention
that the property acquired is so acquired for the purpose of providing a home for the
unmarried couple who intend to live together in a stable relationship which has all the
commitment of a marriage. There must also be evidence of a joint effort in the acquisition,
that is to say, evidence that the claimant has made a substantial contribution whether in
cash or, as in some of the cases reviewed, in personal exertion and toil. All the surrounding
circumstances should be considered as well if the claimant is to be granted a share by
presumption of equity and the imputation of any common intention which results in the
impositions of the constructive trust.

Broadly speaking, the plaintiff in this case did adduce evidence which, subject to our
comment later on regarding Mr. Mwananwasa's submission, revealed both a substantial
cash contribution and a lengthy cohabitation which spoke for itself: At the deceased's
invitation, the plaintiff gave up her own house and later sold it. She lived with the deceased,
not just alone but with her children as well. She moved in with the deceased virtually as
man and wife for more than twenty years, in fact until death parted them. If we are to look
at such a stable union in the same stay as we would at a husband and wife situation, as
some of the authorities discussed suggest, then the sacrifice of her own house and the
devotion to the union which we have described must weigh heavily in her favour. Then
there is the aspect of her cash contributions in the sum of about ú1, 150. That was certainly
a substantial sum of money. It is to be observed too that all the amounts paid were given,
oddly enough, specifically towards the repayment of the88 mortgage; she gave the initial
amount in an effort to pay off the mortgage then paid the monthly repayments in alternate
months over a period of five years; finally, she paid off the entire outstanding mortgage
debt.

The learned trial judge found the amounts to have been advanced as loans. We respectfully
disagree with this interpretation of the transaction and which we find was taken on a view of
the events which cannot be supported by the evidence. Though she may have referred to
the first amount as a loan, yet it was not in dispute that the question of repayment by the
deceased was never at any time raised of even considered. In our considered opinion, the
fact that the plaintiff and the deceased were content the one to pay and the other to be so
assisted is highly significant and is a circumstance which we are entitled to take into
account in the interpretation of the probable intentions of the parties. That circumstance
hardly supports the loan theory. Viewed in the overall context and setting of the affairs, the
conduct, and the relationship disclosed and especially having regard to the fact that the
payments were made after the deceased had talked to her into giving up her own house
which she sold, the payments must have been deliberately made with full knowledge of both
parties to free their home from the mortgage for their joint benefit and enjoyment.

Mr. Mwanawasa argued that acquisition relates to the initial stage when the property vests
in the person acquiring so that subsequent contributions, even if substantial, can never
confer a beneficial interest. An argument of this type could not go very far in a husband and
wife situation. If, for example, a newly wed wife came and paid off a large portion of a
mortgage which she found standing in the husband's name, would a court dealing with an
application for a share, on the wife's part, ignore that fact? But in fact acquisition of a house
cannot be said to begin and to end with the purchase of the plot and the construction of a
house simpliciter as was suggested. We can find no authority for the proposition that
subsequent events, in the form of very substantial contributions towards the price or the
cost still owed by the party vested with legal title cannot be considered. Constructive trusts,
as already noted, are concerned with what the courts in equity consider to be just and fair
in the circumstances of any given case. The plaintiff made tremendous sacrifices and
substantial contribution while the deceased received very valuable benefits which enabled
him to retain the mortgaged property and finally to redeem the mortgage altogether. In
point of fact the dicta in Burns v Burns (8) supports the plaintiff's case she made substantial
contributions directly related to the acquisition of the property not just by enabling the
deceased to pay but by herself actually paying. Undoubtedly, we have before us material
from which to impute a common intention that the plaintiff was to have a beneficial interest
in this property. Mr. Mwanawasa strongly submitted that a man's Will should be respected.
We agree. But by the same token, equity demands that we interfere when, as in this case,
not to do so would result in gross injustice being visited upon the plaintiff.

Because of the special circumstances to which we have referred, and for the reasons
discussed, we hold and find that this appeal must succeed. We reverse the decision below
and declare that the plaintiff is entitled to a beneficial interest in the house.89

The learned trial judge had held, in the alternative, that should he be adjudged wrong on an
appeal, he would assess the plaintiff's beneficial interest at one-eighth of the net proceeds
of sale. No indication was given for arriving at this share other than that the learned trial
judge was excluding the sum of 500 pound because it was a loan. We have already
indicated the contrary. The learned trial judge also took into consideration that for some
twenty-four years the plaintiff has had the benefit of living in the house; but then so did the
deceased before his demise. We do not consider the fact of living in the house per se as a
proper basis for reducing the plaintiff's share. In any case, as already noted, Cooke vs Head
(1) does not seem to suggest the sort of arithmetical calculation attempted by the learned
trial judge who did not even have the benefit of evidence giving the figures representing
either the cost or the value of the house. On the contrary that case suggests that the
matter be looked at more broadly. In all the circumstances of the case, and having regard
to all the matters which we have discussed, we hold that the plaintiff is entitled to a
one-third share. The property is held on trust for sale and the proceeds of such sale are to
be divided between the parties accordingly.

In view of the subject matter of the case, we make no order as to costs.

Appeal allowed.

LUANSHYA DISTRICT COUNCIL v JERICHO SHADRECK MUMBA (1986) Z.R. 90

(S.C.)

SUPREME COURT
GARDENER, AG. D.C.J., MUWO AND SAKALA, JJ.S.
11TH MARCH, 1986
(S.C.Z. JUDGMENT No. 22 OF 1986)

Flynote

Damages - Fatal accidents Act damages - deduction of award under law Reform
(Miscellaneous Provisions) Act

Headnote

The appeal arose from an award of damages by the District Registrar to the administrator of
the estates of one Second Chipena who was killed in an accident for which his employer, the
appellant had admitted liability. The damages awarded severe, inter alia, damages for loss
of expectation of life in the sum of K10, 000.

The appellant appealed on the grounds that the assessment of damages was wholly
erroneous and that the award under the Law Reform (Miscellaneous Provisions) Act should
be deducted from the award under the Fatal Accidents Act.

Held:
The award under the Law Reform (Miscellaneous Provisions) Act must be deducted from the
Fatal Accidents Acts award to the dependants benefit under the form award.90

Cases referred to:

(1) Henwood v Naoumoff (1966) Z.R. 78
(2) Davies v Powell Duffryn Associated Colliers Ltd [1942] 1 All E.R. 657
(3) Cookson v Knowles [1978] 2 All E.R. 604

Legislation referred to:

Fatal Accidents Acts 1846 - 1908 (England)
Law Reforms (Miscellaneous Provisions) Act, Cap 74

For the appellant: G.Kunda, Malik and Co.

For the respondent: E.M. Mukuka, City Chambers.

Judgment

GARDNER, AG. D.C.J., delivered the judgment of the court. This is an appeal from an
assessment of damages by the district registrar. The respondent claimed damages as
administrator of the estate of one Second Chipena, to whom we will refer hereinafter in this
judgment as the deceased, who was killed in an accident or which the appellant his
employer admitted liability by consenting to judgment. Damages were claimed for the
benefit of the dependants of the deceased under the Fatal Accident Acts and on behalf of
the estate under the Law Reform (miscellaneous Provisions) Act.

In his affidavit in support the respondent averred that at the time of his death on the 22nd
October, 1983, the deceased was a charcoal burner earning between K60 and K80 per
month and was survived by a widow and five dependent children. The respondents also
claimed damages for loss of expectation of life in the sum of K10, 000 and asked that the
loss of income of the deceased, who was sixty-three years of age at the time of his death,
should be calculated at the rate of K70 per month for a further twelve years. A further claim
was put forward for loss of consortium at K5, 000.

The plaintiff on his own behalf claimed damages at the rate of K50 per month being the
amount paid by him to the widow for the maintenance of herself and the children since the
death of the deceased. The amount awarded under this head by the district registrar was
K450.

At the hearing of the application for assessment of damages by the district registrar it was
held that as no reason had been given in a letter from counsel for the defendant asking for
an adjournment, and, as no affidavit in opposition had been filed, the matter should
proceed. Accordingly damages were awarded in accordance with the claim set out in the
respondent's affidavit with the exception of the claim for K5,000 for loss of consortium. The
total amount awarded in damages was K20,470. The appellant has appealed on the grounds
that the assessment of damages was wholly erroneous and that the award under the Law
Reform (Miscellaneous Provisions) Act should be deducted from the award under the Fatal
Accidents Acts. The appellant further argues that the award of K450 to the plaintiff in
respect of advance made for the maintenance of the widow and the dependent children
cannot be supported.91

Mr. Mukuka on behalf of the respondent conceded that the award under the Law Reform
(Miscellaneous Provisions) Act was high and suggested that this should be reduced to K5,
000. He maintained further that the remainder of the award should stand.

We have considered the arguments of Mr. Kunda on behalf of the appellant and so far as
the damages under the Law Reform (Miscellaneous Provisions) Act are concerned we agree
that the award of K10, 000 was wholly erroneous and in the circumstances this court has a
duty to interfere with that award. So far as the award for future loss of earnings is
concerned, we note that no reduction in the monthly earnings of the deceased has been
made in respect of the amount which would be attributable to his own future maintenance
had he survived. The calculation was therefore wrong in principle and this court is at large
as to the damages to be awarded under that head.

Mr. Mukuka has asked this court to take into account the effect of inflation on the potential
earnings of the deceased and we agree that inflation is a matter that must be taken into
consideration in the particular circumstances of current events in this country. Taking into
account inflation we consider that the average monthly income of the deceased should be
assessed at K110 per month or K1, 320 per annum, which is an average of an estimate of
his earnings from the date of death.

We do not consider it desirable in this case to split the award into two parts relating
respectively to the period before trial and the period after trial as suggested by Lord Fraser
in Cookson-v - Knowles (3). The deceased was not a salaried employee whose loss of
earnings could be calculated precisely and the lost benefit of receiving interest on the
special damages to the date of judgment has been compensated for by our making
generous estimate of both the multiplier and multiplicand.

We consider that the appropriate multiplier in this case should be ten, and we assess the
amount to be deducted in respect of the future maintenance of the deceased to be one
quarter of the total awarded under this head. We would therefore award as loss of future
earnings a sum calculated as follows:
 K1, 320 x 10 = K13, 320
Less 14 = K3, 300
Total K9, 900

Of this total sum we award half to the widow of the deceased and the other half to the five
dependent children of the deceased in equal shares. This latter sum for the children will be
held in trust by the registrar o the High Court.

We come now to the question of the Law Reform (Miscellaneous Provisions) Act damages.
Under this head we award K1, 000. Mr. Kunda has argued that the amount of this award
should be deducted from the award under the Fatal Accidents Acts and he has cited to us
the case of Henwood v Naoumoff (1), in which Blagden, C.J, said that any award92 under
the Law Reform (Miscellaneous Provisions) Act (1934) of England must be deducted from
the other damages. Although the learned Chief Justice did not say so we presume he was
following the decisions in the case of Davies v Powell Deffryn Associated colleries Ltd (2), in
which it was held by the house of Lords that, under the common law rule that any benefit
accruing on the death of a deceased must be deducted from an award under the Fatal
Accidents Acts, damages for loss of expectation of life under the Law Reform Act constituted
such a benefit and must be deducted. We are bound to agree that any award under the Law
Reform Act must be deducted from the Fatal Accidents Acts award to the extent that the
defendants benefit from the former award.

The amount of the benefit arising out of the award under the- Law Reform Act must
therefore be deducted from the Fatal Accidents Acts damages. However, in view of the
probable size of the deceased estate we anticipate that there will be nothing in that estate
out of which to pay the costs which by virtue of this judgment we must award the appellant.
These costs must be paid out of the estate of the deceased, and, if we are right in our
estimation, the only amount of such estate will be the K1,000 damages under the Law
Reform Act. We therefore, order that if there is nothing else in the estate the amount to be
deducted from the Fatal Accidents Acts damages shall be the amount of the Law Reform Act
damages namely K1, 000 less whatever costs are incurred by the respondent in this action
to reduce that figure.

We agree with Mr. Kunda that no damages can be claimed by the respondent personally for
the amount advanced to the widow and the dependants since the death of the deceased. If
the sums were in fact advances, and not outright gifts, presumably the respondent would be
entitled to reimburse himself out of the Fatal Accidents Acts damages which are awarded for
the maintenance is the widow and the dependants from the date of death.

This appeal is allowed, the award of the district registrar is set aside and in its place we
substitute an award of K1, 000 Law Reform Act damages plus K9,900 Fatal Accidents Acts
damages. The whole to be shared as to half to the widow and the remaining half to the five
dependent children of the deceased in equal shares. Credit is to be given to the appellant
in reduction of the total amount of damages of so much of the K1,000 Law Reform Act
damages as remain after payment of all costs and expenses of this action and appeal
incurred by the respondent. The award of costs to the respondent by the district registrar
will stand, and the respondent will pay the appellant's costs of this appeal.

Appeal allowed
WEBSTER KAYI LUMBWE v THE PEOPLE (1986) Z.R. 93 (S.C.)

SUPREME COURT
SILUNGWE, C.J., NGULUBE, D.C.J., AND MUWO, J.S.
11TH JULY, 1984 AND 23RD SEPTEMBER, 1986
(S.C.Z.) JUDGMENT NO. 23 OF 1986) 93
Flynote

Courts - Court of appeal - Finding of fact - Interference with - when possible.

Criminal law and procedure - Episonage - What amounts to Evidence - Confession -
Voluntariness - Withdrawal of objection to admission in order to enable cross examination of
prosecution witness - Effect of.
Sentence - Appeal - Mandatory minimum - whether appeal lies.

Headnote

The accused appealed against his conviction on a charge of espionage contrary to section 3
(c) of the State Security Act. He was alleged to have passed classified information to the
CIA: an action prejudicial to the safety or interests of the Republic of Zambia and intended
to be directly or indirectly useful to a foreign power. He was given the minimum mandatory
sentence of twenty years imprisonment with hard labour. Grounds of Appeal were inter alia
that his confession was wrongly admitted and that the trial court misdirected itself in finding
the charge of espionage proved after choosing to believe the prosecution witnesses.

Held:
(i) An appeal court will not interfere with a trial court finding of fact, on the issue of
credibility unless it is clearly shown that the finding was erroneous.

(ii) When an objection to the admissibility of a confession was withdrawn in order to

enable the defence to cross - examine on it, an appellant cannot complain about its
admission unless he can point to an irregularity or impropriety rendering its
admission unsatisfactory.

(iii) No appeal lies against a mandatory minimum sentence.

Cases referred to:

(1) Kenmuir v Hattingh (1974) Z.R. 162
(2) Malawo v Bulk Carriers (Zambia) Ltd (1978) Z.R. 185

Legislation referred to:

State Security Act, Cap. 110, s. 3 (c)

Supreme Court Act, Cap. 52, s. 22 (c)

For the appellant: T.C. Chalanshi & Co.

For the respondent: N. Sivakamaran, Senior State Advocate.

Judgment

SILUNGWE, C.J.: Delivered the judgment of the court. This is an appeal against
conviction on a charge of episonage, contrary to section 3 (c) of the State Security Act, Cap.
110. At the appellant's trial, the allegation was that, on a date unknown but between
January 1, 1979 and April 30, 1981 at Lusaka, he communicated with, or passed on
information to, the Central Intelligence Agency (hereinafter referred to as the CIA) and that
the said information was prejudicial to the safety or interests of the Republic of Zambia, it
having been intended to be directly or indirectly useful to a foreign power. The appellant
was94 convicted as charged and given the minimum mandatory sentence of twenty years
imprisonment with hard labour, effective from June 22nd, 1981. The appeal is against
conviction only.

We give here below a precise of the evidence on which the appellant was convicted.

The appellant joined the Zambia Security Intelligence Service (henceforth referred to. as the
Z.S.I.S.) as an intelligence officer in February 1971 at the age of twenty years. Sometime in
May or June 1976, he attended an External Operations Course organised by the C.I.A.,
apparently for the benefit of some of the Z.S.I.S. personnel. One of the course instructors
was a Mr. Frederick Lundahl, a Second Secretary and an officially declared C.I.A. agent,
then based at the American Embassy in Lusaka.

On May 11, 1977, the appellant wrote a letter of resignation from the Z.S.I.S. in
consequence of which his services were terminated on the following day.

About December 1977, the appellant's fellow church-goer by the name of John Chisanga
offered to absorb him in a business venture - a cloth manufacturing factory called Millenia
Garments. Mr. Chisanga's senior partner was a Jew called Mark Zemark. The appellant was
appointed as a factory manager, a position he regarded as "a blessing from God." However,
that business venture soon fell apart due to differences between the partners over financial
matters.

In December, 1973, the appellant contacted Mr. Lundahl by telephone and, on meeting him,
sought employment with the C.I.A. As a result of this initiative, the appellant was taken on
as an agent of the C.I.A. and worked as such during the period January 1979 to April 1981,
using, the cover name of John Dube.

On January 7, 1980, the appellant rejoined the Public Service, this time as a protocol officer
in the Ministry of Foreign Affairs.

In the evening of Thursday April 9, Mr. Obino Richard Haambote, a Director of External
Operations in the Z.S.I.S. was having refreshments at the Lusaka Theatre Club when he
was approached by the appellant and informed by him that he (the appellant) had
"something urgent and very important to tell him." Mr. Haambote and the appellant then
went to the appellant's flat at Pipit Court where the appellant confessed that he had been a
CIA agent since the end of 1978. When asked why he had seen it fit to confess, the
appellant replied that, as a Christian, his conscience was not free and, as such, he could no
longer continue to work for a foreign organisation against the interests of his country. It was
agreed that the appellant would reduce their discussion to writing. Mr. Haambote was then
asked to make arrangements for the appellant to have audience with the President.

In the morning of April 10, 1981, Mr. Haambote reported the appellant's confession to Mr
AK. Mbewe, then Director-General of Z.S.I.S., as well as the appellant's wish to be received
by the President.95
Thereafter the appellant gave a preliminary report in his own handwriting to Mr Haambote
entitled: "How I met the C.I.A." The report was later produced and admitted in evidence.

In accordance with his request, the appellant was granted audience by the President at
State House on the 10th April. Also present at that meeting were Messrs Mbewe and
Haambote. When the appellant repeated his confession and the reason for it, the President
asked him to tell Mr. Haambote all about his association with the CIA and the information he
had passed to that organisation.

The confession was subsequently discussed in detail by the appellant and Mr. Haambote at a
State House Lodge on the 16th of April, as a result of which the appellant prepared a
document entitled: "How I got in touch with the C.I.A." which, like the preliminary report,
was subsequently received in evidence. A further discussion between the appellant and Mr.
Haambote took place at the same venue on the 18th of April and, on that occasion, the
discussion was tape-recorded. Both the tape and the micro-tape recorder were later
received in evidence.

On the 22nd of June, the police launched a full-scale investigation into the case and
Detective Inspector Andrew Mwape was detailed by the Senior Superintendent Donald
Yanda to look for any evidence relevant to a charge of espionage. Accordingly, a search
warrant was issued and the appellant's residence was searched, as a result of which the
following documents were discovered in a concealment device located in the sitting room:
(a) a letter addressed to the President; (b) a letter of confession addressed to the United
States Ambassador in Zambia; (c) Requirements levied on me; and (d) "My encounter with
Bishop Muzorewa." All these documents were subsequently and properly admitted in
evidence. The appellant was said to have passed specific classified information to the C.I.A.

The appellant's story is that, whilst he was working for the Z.S.I.S, Mr. Wilted Phiri, then
Director-General of that organisation, but who was later to be succeeded by Mr. Mbewe told
the appellant that the Z.S.I.S. was to launch an operation or scheme against the C.I.A. to
be operated by the appellant. According to the appellant, Mr. Phiri advised him in May,
1977, that, in order for the scheme to succeed, it was necessary for him to resign from the
Z.S.I.S. Pursuant to that advice, he wrote a letter of resignation on the 11th of May and, on
the following day, his services with the Z.S.I.S. were terminated. Mr. Phiri allegedly
promised to render financial assistance to him.

It was alleged that, in compliance with Mr. Phiri's instruction, the appellant contacted Mr.
Lundahl, using the cover name of John Dube. After the contact had been established, Mr.
Phiri is said to have given him carefully selected information about the Soviet Union which
he then passed on to the Americans at their request.

When Mr. Phiri was appointed as Minister of Home Affairs in 1978, Mr. AK. Mbewe took over
from him as head of the Z.S.I.S. and continued with the scheme against the CIA In
pursuance of the scheme, the96 appellant purportedly resigned from the Z.S.I.S. and
thereafter worked as a double agent. In 1980, however, the appellant, having got tired of
serving as a double agent, joined the civil service in the Ministry of Foreign Affairs and was
placed in the protocol section of the Ministry.

The appellant's allegation was that, in March, 1981, Mr. Mbewe told him that he did not
know what the objectives of the operation were and so he was asked to write a confession
stating how the operation had started and all that had transpired between him and the
Americans. Mr. Mbewe is said to have promised that he would influence the President to
appoint the appellant as ambassador to Portugal and that he would be given some
financial and material reward, It was further alleged that Mr. Mbewe had given him the
concealment device. According to the appellant's confession, to which we shall revert later
on, the concealment device had been given to him by the C.I.A. after it had been flown from
Washington D.C. for his use whenever he wanted to store sensitive material until such time
as he was able to pass it on to the CIA or to utilise it. Mr. Mbewe had allegedly told him
during the first week of April 1981 to make a confession to Mr. Haambote and to state
therein how the operation had started and what ha transpired between him and the
Americans. Consequently, when he met Mr. Haambote at the Lusaka Theatre Club on the
9th of that month he took him to his flat and confessed to have a working relationship with
the C.I.A. This allegation was specifically refuted by Mr. Mbewe.

With reference to the audience that he had with the President, the appellant's position was
that he had made no confession before him but that the President had merely thanked him
for his patriotism and promised him a promotion within a matter of weeks. The appellant
further stated that the confession allegedly made at State Lodge had been rehearsed by him
at Mr. Haambote's suggestion.

It suffices to say that the appellant's contention on all material issues stand poles apart
from the evidence adduced by the prosecution which was accepted by the trial court.

This appeal raised four main issues, namely, (a) did the appellant, join the C.I.A. in
furtherance of a scheme mounted by the Z.S.I.S. against the C.I.A.? (b) did he make a free
voluntary confession? (c) did he pass any classified information which was prejudicial to the
safety or interests of the Republic of Zambia and which was intended to be directly or
indirectly useful to a foreign power? and (d) did the learned trial judge err by deciding the
issue of credibility against the appellant?

As regards the first issue, Mr. Chalanshi, learned counsel for the appellant, urged us to
accept the argument that the appellant's relationship with the CIA had not come about as a
result of his volition but that this had been in obedience to instructions from his superior
officers and that he reasonably believed that the relationship was necessary in the discharge
of his duties as an intelligence officer so as to facilitate the success of the scheme against
the C.I.A. which had been initiated by Mr. Phiri and later perpetuated by Mr. Mbewe, Mr.
Chalanshi submitted that his client's resignation from the Z.S.I.S. had 97 been in
pursuance of a previous instruction given to him by Mr. Phiri in furtherance of the scheme
and that, because of that arrangement, his resignation was too readily accepted by the
Z.S.I.S. The prosecution's position was that this allegation was baseless.

It is common ground that the appellant was an agent of the C.I.A. during the period January
1979 to April 1981 and that he used the cover name of John Dube. There is however
nothing a record to support the existence of any such scheme or operation against the
C.I.A., as alleged by the appellant. The prosecution evidence, especially that of Messrs
Phiri, Mbewe and Haambote and of documents found in the concealment device makes it
abundantly clear that the appellant had freely chosen to resign from the Z.S.I.S. and later
to work for the C.I.A. It is evident that his resignation was prompted by feelings of
frustration for lack of promotion and that thereafter his initiative to join the C.I.A. was inter
alia, dictated by the effects of poverty. What happened was that, when the appellant found
himself without any material means of support, he decided to contact the C.I.A. He later
spoke of his reaction in these terms: ''At first I trembled at the thought of betraying my own
country. But the grim uncertain future ahead of me gave me false courage." In his own
words, "the real reason for contacting the C.I.A. " was that he "had drifted into sin and
forgotten God" and that he had been motivated by "financial destitution, misguided youthful
adventurism" and "bitterness" against his superiors in the Z.S.I.S. and "indirectly against
the Government of President; Kaunda." Explaining how he had got in touch with the C.I.A.,
the appellant, said:

"I had no employment. I had been, I thought unfairly treated by the Intelligence
Service. I thought that I had all the talent that people could tap on and to find myself
walking in the street, with torn shoes and no employment when I had such a dangerous
career behind me and harbouring so much amount of hatred, sort of bitterness against the
system, I wanted to at least make some revenge and show those people who were in
positions of authority and power at that time that when you neglect talent and ability you
only do it at your own peril."

In the document entitled "How I got in touch with the C.I.A." the appellant states how he
was recruited into the C.I.A., how he underwent rigorous screening by a C.I.A. expert from
Washington D.C.; his passing "with flying colours" of the pre-recruitment screening which
included a technical device and how the C.I.A. took him "into their confidence."His initial
monthly salary was K200.00 plus K100.00 to cover operational expenses. Although the
appellant alleged that there was an arrangement between Mr. Phiri and himself to surrender
to the Z.S.I.S. any financial or material remuneration received from the C.I.A., there is no
evidence whatsoever, not even from the appellant himself, that any such remuneration
was ever passed on to the Z.S.I.S. However as we have said above, there was no evidence
to support the alleged scheme and, consequently, the remuneration that the appellant
received from the CIA was entirely for his own personal benefit. 98
In the document "How I got in touch with the C.I.A.'' the appellant indicates that he was
free to leave the C.I.A. and join any other organisation, including the civil service. He
sought employment with the Zambia Army and even went to the extent of having an
interview with Mr. Masheke, the Deputy Army Commander, but later decided to join the civil
service as a protocol officer in the Ministry of Foreign Affairs. Surely, if the appellant had in
reality been an officer of the Z.S.I.S. at the time that he became an agent of the CIA that
is, if he had merely been acting on behalf of the Z.S.I.S. to facilitate the success of a
scheme or operation mounted by the Z.S.I.S. against the C.I.A., as alleged by him, he
would not have had the liberty to seek other employment. The truth of the matter is that he
sought other employment because, as he himself put it: "he was not in the least interested
in rejoining the Intelligence Service."

The reality of the appellant's resignation was that, when he realised that prospects for his
promotion were remote, he became frustrated. He then wrote a letter of resignation from
Z.S.I.S. intending thereby to merely find out if his superiors regarded him worthy of
advancement in the service. Unfortunately for him, the letter of resignation did not bring
about the intended result. Instead, his resignation was accepted immediately because, as
Messrs Phiri and Mbewe were later to testify, he was no longer interested in his job.

The second issue is whether the appellant made a free and voluntary confession on separate
occasions, firstly, to Mr. Haambote; secondly at State House before the President, Messrs
Mbewe and Haambote; and thirdly to Mr. Haambote at State Lodge.

At the hearing of the appeal, it was contended by Mr. Chalanshi that the confession ought
not to have been admitted in evidence on three grounds: First, that the confession was not
voluntary as the appellant had been instructed by Mr. Mbewe to make it, indicating how the
operation against the C.I.A. had been initiated by Mr. Phiri; second, that Mr. Haambote had
made the appellant to rehearse the tape-recorded confession; and third, that the customary
warn and caution had not been administered at the right time. The contention may shortly
be disposed of.

Although an objection was initially raised at the trial by the appellant's counsel against the
admission of the confession, including the tape-recorded part of it, the objection was quickly
withdrawn on the appellant's instructions, giving as a reason the need to cross-examine
prosecution witnesses on it. Thereafter the confession was admitted in evidence. In our
judgment, the appellant's counsel, though different from the one that conducted the
defence at the trial, cannot now be heard to complain against the admission of the
confession unless he can point to an impropriety or irregularity rendering the admissibility of
the confession unsatisfactory, this Mr. Chalanshi was not able to do. It is to be noted that
the learned trial judge had considered the exercise of his discretion in the matter and that
he had exercised it in favour of99 admission of the confession. There was thus no
misdirection in the admission by the learned trial judge of the appellant's confession.
Indeed, it is evident from the prosecution evidence, particularly that given by Messrs Mbewe
and Haambote as well as the contents of the document entitled: "How I got in touch with
the C.I.A." under a paragraph headed: "Why I confessed", that the appellant confessed
because, as a Christian, he wanted to have a "free conscience," it being no longer his desire
to serve the C.I.A. against the interest of his country. In his own words, he said:

"What really troubled me was the spirit of the living God. I could not continue to pray
to God and ask for forgiveness with full knowledge of my acts of treachery. I realised that
my confession would be a risk which would take me to prison for the rest of my life if the;
authorities did not believe my story, but better die with a free mind and with a firm belief
that what I did under the circumstances was the rest I could do for my country. I have
come out whole heartedly and there is no deception in me."

Further, the appellant had volunteered his confession in the hope that it might become a
mitigating factor and save him from a "long spell of imprisonment or even possible
execution". The appellant made it known that had he not confessed his involvement with
the C.I.A., he "could have gone on for more than ten (10) years without any fear of being
detected" because of certain precautionary measures that had been taken.

As to why the appellant had chosen to make his confession to Mr. Haambote, he said that
he had known him quite well since 1971 and that Mr. Haambote was like a brother to him as
he had previously given him some very valuable advice. He said further that Mr. Haambote
was the only man out of the entire organisation who had come to his help, including
financial help, whenever need arose. He confessed to Mr. Haambote because he knew that
he "would strike an understanding chord."

It is significant to observe that, in a letter dated June 18th, 1981, addressed to the
American Ambassador accredited to Zambia, the appellant told him that he had made a
confession about his involvement with the C.I.A. and, fearing that the Director-General
might decide to take him to court, he told the ambassador that (a) the C.I.A. should not
abandon people who had risked their lives and co-operated with them; (b) that if he were to
be taken to court as a self-confessed spy who had revealed so much, the image of the
C.I.A. might super; and (c) that, for humanitarian grounds, the ambassador should be
mindful of the anguish and deep sorrow that would be inflicted on his mother, father and
brothers if he were to be executed or sentenced to a. long prison term ranging from 20 to
30 years. The appellant then expressed his desire to flee the country in order to avert a
court action which he sensed would come sooner or later; asked for a job in the United
States of America; and wished to be given financial assistance for the benefit of his poor
parents whom he would leave behind.100

The next issue is whether the appellant passed any information prejudicial to the safety or
interests of Zambia thereby intending it to be directly or indirectly useful to a foreign power.

During examination-in-chief and cross-examination the appellant admitted having passed

some information to the C.I.A. but claimed that the information passed was innocuous.
However, in a document entitled "Requirements levied on me", the appellant sets out what
information he had been asked to communicate to the C.I.A. The last paragraph of that
document, which is headed "What I was able to pass", gives a list of some of the classified
information that the appellant communicated to the CIA That list includes the following: (a)
information relating to the granting of visas to Soviet nationals and their movements in
Zambia and about a memorandum in which the Soviets had complained about the
establishment of a cultural centre in Lusaka; (b) information about the existence, location
and deployment of SAM3 missiles in Zambia, (c) minutes of the 36th Session of the OAU
Liberation Committee Meeting that had recently been held in Dar-es - Salaam; (d) A recent
brief on the Reagan administration submitted to the Headquarters of the Ministry of Foreign
Affairs by Ambassador Ngonda in Washington D.C.; and (e) names of Directors of various
desks at the Ministry Headquarters.

All this constitutes sufficient evidence that the appellant did communicate classified
information that was prejudicial to the safety or interests of Zambia thereby intending it to
be indirectly or directly useful to the United States of America. The learned trial judge was,
therefore, entitled to find that this ingredient of the charge had been established by the
prosecution.

Finally, Mr. Chalanshi raised the issue of credibility. He argued that it was clear from the
trial court's judgment that the appellant had been convicted solely on credibility and added
that, in so doing, the court had fallen into error by not having adequately considered the
credibility of the appellant's version of the story. He relied on our judgments in Kenmuir v
Hattingh (1) and Malawo v Bulk Carriers (Zambia) Ltd (2) where we had said at pages 163,
lines 36 to 40; and 187, lines 16 to 20 respectively, that where questions of credibility are
involved, an appellate court which has not had the advantage of seeing and hearing
witnesses will not interfere with findings of fact made by the trial judge unless it is clearly
shown that he has fallen into error.

We do not consider that Mr. Chalanshi demonstrated a basis on which we could reverse the
learned trial judge's findings on credibility. We are satisfied that he fully considered the
evidence before him and that there was no misdirection in his acceptance of the prosecution
story and rejection of the appellant's version.

What we have said in this judgment leaves us in no doubt whatsoever that the appellant's
conviction was fully justified. The appeal against conviction is dismissed.

There is no appeal against the mandatory minimum sentence of 20 years imprisonment with
hard labour, and rightly so, as no appeal lies101 against a mandatory minimum sentence.

However, as the appellant's application to be treated as a unconvicted prisoner pending the

determination of his appeal by this Court was granted in terms of section 22(a) of the
Supreme Court Act, Cap. 52, it is directed that, on account of the delay in having this
appeal determined, one half of the period during which he was treated as an unconvicted
prisoner will be credited to him but the other half will count as if he had been on bail
pending the determination of the appeal.

Appeal dismissed.

CHARLES NALUMINO v THE PEOPLE (1986) Z.R. 102 (S.C.)

SUPREME COURT
SILUNGWE, C.J., NGULUBE, D.C.J., AND GARDNER, J.S.
9TH JULY, [1985] AND 24TH DECEMBER, 1986
(S.C.Z. JUDGMENT NO. 24 OF 1986)

Flynote

Evidence - Confession - Admissibility - Duress - Lack of external evidence of injuries from

beatings - Effect of Evidence - Confession - Admissibility - Duty of court to enquire into
objection.

Headnote

The appellant was convicted of communicating classified matters to unauthorised persons

contrary to s. 15 (1) of the State Security Act. The conviction was based solely on the
evidence of a disputed confession about which no enquiry as to objection was made to
counsel for the defence. Furthermore the trial judge did not believe the defence evidence of
beatings because there were no external injuries.

Held:
(i) It is immaterial whether or not an accused is represented by counsel, the court must
in all cases ask the defence whether they wish to object to the admission in evidence of a
confession.
(ii) It is not in all cases that an assault wild be followed by manifestations of external
injuries. Lack of such injuries is not a ground for disregarding medical evidence supportive
of an appellant's allegation of assault.

Case referred to:

(1) Chimbo and Others v The People (1982) Z.R. 20

Legislation referred to:

State Security Act Cap. 110 S 5 (1)

For the appellant: T.C. Chalanshi and Co.

For the respondent: A.B. Munthali State Advocate

Judgment

SILUNGWE, C.J., delivered the judgment of the court: The accused was tried in the High
Court on a change of communicating classified matters to unauthorised persons, contrary to
Section 5 (1) of the State Security Act. Cap. 110. The particulars of the offence were that,
on a date unknown but between July 28, and August 2, 1982, at Lusaka the 102 appellant,
being a person employed in the public service as a clerical officer in the Office of the
President, communicated to Mrs. Miriam Mbololwa Wina a top secret document headed
"Subversion" when it was not in the interests of the Republic so to do. He was convicted as
charged and appeal is against conviction only.

At the appellant’s trial, the evidence against him rested on a disputed confession. The
learned trial judge conducted a trial-within-a-trial and thereafter came to the conclusion
that the confession had been made freely and voluntarily, the confession was then admitted
in evidence and subsequently resulted in the appellant's conviction. It is the admission of
that confession that constitutes the main ground of this appeal.

The prosecution's case was that the appellant's sister had been married to Mr. Wina's late
brother and that the sister's children of that marriage were being looked after by Mrs. Wina.
The first prosecution witness Mr. Nkhoma, then Deputy Director of the Zambia Security
Intelligence Services (hereinafter referred to as the Z.S.I.S.), acting on information
received, had detailed the appellant in February and May,1982, to verify reports about an
alleged illegal importation of vehicles from South Africa, and about trafficking in ivory, by
Mr. and Mrs. Sikota Wina (hereinafter referred to as the Winas), and that, in compliance
with instructions received, the appellant had visited the residence of the Winas at their farm
in Mimosa, Lusaka. On July 30, 1982, Mr. Nkhoma received certain information as a result
of which he instituted investigations against, and interrogated, the appellant concerning an
allegation that, on the appellant's instructions, the second prosecution witness, Mr. Michael
Mubanga - ten a machine operator in the Z.S.I.S. had made photostat copies of a Top
Secret Report No. TS/CV/70/1/11, dated July 26, 1982, on the alleged importation by the
Winas of motor vehicles to which reference has already been made, and that he had
communicated the said report to Mrs. Wina who was an unauthorised person. When the
interrogation resumed on the 31st of July the appellant allegedly admitted having seen in
the Registry a file on the Winas but denied having caused its contents to be photocopied.
However, when Mr. Nkhoma stated that he had information to the effect that the appellant
had obtained photostat copies of the report on the Winas, the appellant is said to have
broken down and admitted to have obtained photostat copies of the report and to have
delivered them to Mrs. Wina at the Winas farm for which she had given him K150. Further,
the appellant is said to have revealed that the Winas had specifically arranged with him to
communicate to them any Z.S.I.S intelligence reports on them and hat he had been
promised financial reward and a car for playing his part. Mr. Nkhoma then handed the
appellant over to the police at the Lusaka Central Police Station for further investigations.
On August 3rd, 1982, Detective Inspector Emos Phiri recorded a warn and caution
statement the disputed statement - from the appellant which as we know later became the
subject of a trial-within-a-trial.

Contrary to the evidence of Mr. Nkhoma and Mr. Chalanshi's submission to us Mr.
Mubanga's testimony was neutral in that,103 although he had allegedly seen the
appellant come into a machine room holding a file and a book and had, at the appellant's
request, made two photostat copies of a seven-page document from the file, he neither
knew what the document was all about nor could he remember the file number. He could,
therefore, hardly be described as an accomplice or as a witness with a possible interest of
his own to serve.

On the issue of the alleged confession, the appellant's evidence reveals that he had been a
victim of assaults and duress at the hands of the security forces during the period July 28th
and August 28th, 1982. His witness, a Medical assistant known as Mathew Mbao, gave
corroborative evidence of assault. However, both were disbelieved by the learned trial
judge.

Before we can discuss the issue of the alleged confession, it seems to us proper that what
we regard as the side issue of interrogations should be disposed of, for what the appellant
allegedly said has the trappings of a confession. Besides the allegation of assaults, it is clear
from the case record that no warn and caution was ever administered to the appellant
during interrogations. This was an obvious breach of the Judges Rules. We would like to
point out that suspects ought to be warned and cautioned prior to their being
interrogated.

Further, the defence at the trial were never asked if they wished to object at the time when
Mr. Nkhoma gave evidence of the appellant's apparent confession during interrogations. Mr.
Chalanshi's reaction to this omission was that a court has a duty to ask an unrepresented
accused if he wishes to raise an objection to the admission of a confession, but that where
an accused is represented by counsel, it must be presumed that counsel has no objection to
raise. We wish to reiterate what we said to Mr. Chalanshi then that it is immaterial whether
or not an accused is legally represented and that, in all cases, the court must ask the
defence - represented or unrepresented whether they wish to object to the admission in
evidence of a confession. In this case, the learned trial judge's omission was, therefore, a
misdirection.

As a result of the misdirections referred to above, Mr. Nkhoma's evidence of the appellant's
purported confession must completely be disregarded.

As regards the warn and caution confession attributed to the appellant, his stand was that,
from the time interrogations commenced until August 20th, 1982, he had been starved and
repeatedly beaten by security personnel; and that, on the 3rd of August, he had been
presented with a pre-recorded statement and forced to sign and that he signed it on
account of fear for his life. The appellant's evidence was that he had sustained a swollen
right leg and sore right thigh and hip; and that, on the 6th of August, he had been taken to
Kamwala Health Centre where he was examined and treated by Mr. Mathew Mbao, a
medical assistant who later testified on his behalf. According to Mr. Mbao's testimony, the
appellant complained to him of pain in the right thigh. On examination, Mr. Mbao found that
the appellant's right thigh was104 inflamed, swollen and tender. In his opinion, the
inflammation was due to an inflammation of muscle fibres which could have been caused by
beating.

In rejecting the appellant's evidence and that of Mr. Mbao, the learned trial judge made the
following observation:

"Looking at the evidence concerning the manner in which the accused is alleged to
have been beaten between 28th July and 2nd August, 1982, it is difficult to believe that the
accused would have gone free without some visible external injuries. I cannot see how a
person assaulted with a broom-handle persistently for 3 days would have escaped visible
external injuries."

In our judgment, the trial court's approach was erroneous because it is not in all cases that
an assault will be followed by manifestations of external injuries. As medical evidence was
supportive of the appellant's allegations of assault, it was a misdirection to disregard it.
On the authority of Chimbo and Others v the People (1), whose facts are similar to those of
the present case, we are satisfied that the alleged confession ought not to have been
admitted in evidence of the ground of involuntariness; its admission in evidence was,
therefore, a serious misdirection. In the absence of any other evidence - direct or
circumstantial - to link the appellant with the commission of the offence charged, the appeal
must succeed. The conviction is quashed and the sentence is set aside.

Appeal allowed.

ABEL BANDA v THE PEOPLE (1986) Z.R. 105 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., CHOMBA AND GARDNER, JJ.S.
4TH NOVEMBER, 1986 AND 28TH JANUARY, 1987.
(S.C.Z. JUDGMENT NO. 25 OF 1986)

Flynote

Courts - stare Decisis - Power of Supreme Court to overrule itself Considerations.

Evidence - Confession - Administration of warn and caution - Person in authority - Village
headmen - whether included.
Evidence - Witness - Duty of prosecutor with knowledge of evidence favourable to the
defence.

Headnote

The appellant was convicted of murder by administering a pesticide contained in a drink of

Kachasu. The Prosecution evidence included, inter alia, an interrogation conducted without
administering a warn and caution by the village headman.

Held:
(i) In order to have certainty in the law, the Supreme Court should 105 stand by its
past decisions even if they are erroneous unless there is a sufficiently strong reason
requiring that such decisions should be overruled. Chibozu and Anor v The People
overruled.
(ii) A village headman is not a person in authority for purposes of administering a warn
and caution before interrogating a suspect, since his normal duties do not pertain to
investigating crime.

(iii) A prosecutor is under no duty to place before the court all the evidence known to
him, however where he knows of a credible witness whose evidence supports the
accused's innocence, he should inform the defence about him .

Cases referred to:

(1) Callis v Gunn [1963] 3 All E.R. 677
(2) Chinyama and Ors v The People (1977) Z.R 426
(3) Dallison v Caffery [1964] 2 All E.R. 610
(4) Chibozu and Another v The People (1981) Z.R. 2
(5) Kasote v The People (1977) Z.R. 75
(6) Musongo v The People (1978) Z.R. 266
Legislation referred to:
Penal Code, Cap. 146 ss. 14 (1), 12.16, 200, 204

For respondent: Ngenda, Ngenda and Co.

For respondent: A.B. Munthali, State Advocate.

Judgment

CHOMBA, J.S.: delivered the judgment of the court. The appellant in this case was
convicted of murder to Section 200 of the Penal Code, it having been alleged that on the
16th August, 1983, he murdered one Andereya Mwanza. This was at Chadiza in the Eastern
Province of the Republic of Zambia. The capital sentence was imposed on him. He now
appeals against conviction. In this court he was represented by Mr. Ngenda of Ngenda and
Company while the State was represented by Mr. Munthali, a State Advocate.

The short parts of the case as presented by the prosecution were that in the night of the
16th August, 1983 the appellant visited the deceased a personal friend of his, and woke him
out of sleep. When the appellant entered the deceased's house, the deceased's wife, namely
Enelesi Phiri, who was the first prosecution witness, noticed that the appellant was carrying
a bottle of kachasu liquor and a cup. When he settled down the appellant poured out some
kachasu into the cup he had and offered it to the deceased. The latter accepted and drank
from the cup. The appellant did not partake of the liquor that night. Thereafter he told the
deceased to keep the remaining kachasu in the bottle until the following morning. At the
time of his departure from the deceased's house that night, the appellant took with him the
cup. Later that night the deceased was taken ill. He complained of "a paining" throat. Early
the following106 morning the appellant returned and after exchanging pleasantries with
the deceased's wife, the deceased's wife told the appellant that her husband was not feeling
well. She did not explain. The appellant settled down and drunk the remaining contents of
the bottle. That day the 17th August, 1983 the condition of the deceased worsened. He was
complaining that the pain in the throat was getting worse. The deceased's wife reported the
matter to Dofilo Sakala the village headman. Eventually when the village headman arrived
at the deceased's home the deceased was found dead.

Acting, on the information he had evidently received from the deceased's wife, the headman
interviewed the appellant. The following passages sum up the headman's evidence. In
examination in chief he stated, inter alia:

"In the process people brought Abel. I asked Abel whether he was the one who
poisoned PW1's husband. He said he was. After interviewing the accused (Abel Banda) I
reported to the police."

And under cross examination he said, inter alia:

"The accused when questioned did not deny killing the deceased. The accused was
asked for the second time and still admitted. He was asked for the second time to confirm.
He never denied."

A post mortem examination on the deceased's body was conducted by Dr. Kashana
Yinadabathule, the fifth prosecution witness. The significant findings were as follows,
quoting from his evidence:
 "Internal examination revealed that the throat was empty. The lungs were
congested, the intestines were congested. The urinary bladder was empty. The left side of
the scrotum was big. The cause of death could have been poisoning him because I
suspected poisoning. I took complete stomach, complete kidney a piece of liver, piece of
spleen and a piece of lung. I also took 5cc of blood. They were all preserved in 15% chloride
which is a preservative. I completed forms which I handed to police officer to be taken to
Lusaka to a Public Analyst for chemical analysis."

The relevant evidence of the Chief Analytical Chemist and Public Analyst was to the
following effect:

On the 29th August, 1983, he received from Det/Const. Mulilo of Chadiza Police Station
specimens from the body of Andereya Mwanza. On examination of these specimens he
discovered that an organic phosphorous pesticide known as dimethoate or usually known as
rogor was identified in all the specimens.

In the meantime while in police custody the appellant made a warn and caution statement,
as quoted below:

"I went to buy the kachasu beer and Stephen and I we drunk some of it until there
was only half a bottle remaining in it when very late in the evening Stephen told me not to
finish the kachasu but that I should take the remaining beer to Mr. Andereya 107
Mwanza's house, so that he can take part in drinking. So I stood up and before I could walk
away Stephen told me to wait, he put his hands in a trousers pocket and drew from it a
plastic paper on which he had wrapped some powdered substance which was whitish in
colour, he put the powdered stuff in cup and he said to me get this stuff in a cup and go to
Andereya Mwanza's house and on your arrival there you will apply in this kachasu beer
which you must give to him to drink, I want him to die. Because he has given my father a
lot of problems and that he wants us to leave this village, so I got what I was given and did
what I was told by Stephen Mwale and Mwanza actually drunk the beer which I had mixed
with some stuff, after which I left for my house, where my friend was. I told him that I had
given Mwanza the beer and that he had taken it. So we slept. The following morning at
dawn I went back to Mwanza's house to finish the remainder of the beer which I had left in
the bottle. I enquired as to how he was feeling he said he was feeling that the throat was
dry and had some body pains. I left for my house and informed Stephen who later in the
morning of the day left for Chipata. Some hours later on August 17th, 1983, Andereya
Mwanza passed away."

In arguing the appeal Mr. Ngenda raised a number of points. Firstly, he argued that the
totality of the evidence adduced by the prosecution in support of the charge of murder was
insufficient to sustain the conviction. To this end he quoted a passage from the judgment of
the trial judge. This passage is as follows, quoting from the judgment on page 24 of the
appeal record:

"At the outset I must point out that Mr. Lungu's submissions have been well taken
and have great force in them, but the greatest hurdle for the defence is the warn and
caution statement admitted in evidence after a trial-within-a trial."

The reference by the trial judge to the submissions of Mr. Lungu, who was then the defence
lawyer, is a reference to the following position which is reflected in the judgment. I quote
again from the judgment at page 23:

"At the close of the defence case, Mr. Lungu on behalf of the accused, made brief
submissions. Counsel submitted that on the prosecution evidence there are a lot of doubts
as to whether it is the accused who caused the death of the deceased or not. Counsel
pointed out that PW1, the widow, testified that at the place they visited with the deceased
they had nshima but did not clarify whether the meal was taken jointly or separately. Mr.
Lungu submitted that this creates a doubt which must be resolved in favour of the accused.
Mr. Lungu further pointed out that the evidence of PW1 discloses that the accused also
drank some of the beer from the same bottle next morning. This raises the doubt whether
the beer was poisonous or not. Mr. Lungu farther argued that the evidence of the Public
Analyst does not state what food was poisonous in the stomach. Counsel also argued that
the cups,108 part of the specimen was not linked with the offence, they were not
produced and nobody knows where they were collected from. Counsel submitted that in the
light of all the foregoing doubts, it will be in the best interest of justice for the court to
exercise its discretion in favour of the accused by even at this moment excluding the
statement made under caution."

We must agree with the counter submission by Mr. Munthali that the appellant's counsel
misconstrued the elect of the trial judge's statement in regard to the submissions made by
Mr. Lungu in the appellant's behalf. The correct interpretation was that the judge, while
conceding that the matters raised by Mr. Lungu raised doubts, was satisfied that the
damning evidence against the appellant was his own warn and caution statement. We have
in fact ourselves perused the evidence on the appeal record and cannot find anything to
support the submission in this regard from the appellant's counsel. That submission does
not find favour with us.

The next aspect argued by Mr. Ngenda related to the warn and caution statement. He noted
that the admissibility or the warn and caution statement was objected to on the ground that
duress had been used to induce the appellant to make a confession. He however regretted
that the appellant did not give evidence at the stage of the trial within the trial which was
directed at determining the voluntariness of the making of the statement. This
not-withstanding Mr. Ngenda argued that as the appellant had alleged that the police had
assaulted him as a result of which he had lost two teeth the judge ought in his discretion, to
have excluded the statement. Counsel contended further that the fact that two police
witnesses, namely Det/Sgt Bernard Malata Phiri and Det/Const. Timothy Dambuzi had
contradicted each other in regard to the place where the warn and caution statement was
taken and as to the number of persons present at the time of the taking of the statement
raised a question as to the manner in which the statement was taken. For these two
reasons the appellant's counsel argued that the trial judge should have exercised his
discretion so as to exclude the statement even though it, was taken in compliance with the
judge's rules.

In the instant case the statement was objected to at the trial on the ground that duress had
been used to induce the appellant to make it. Further, as the learned trial judge observed,
none of the police witness who gave evidence as to the voluntariness of the statement was
cross examined as to the alleged duress during the trial within a trial. It is no wonder
therefore that the trial judge came to the conclusion that the statement was freely and
voluntarily made.

It is settled law that a warn and caution statement which is taken in compliance with the
Judges' Rules can only be excluded, in the exercise of the trial judge's discretion, if its
admission would operate unfairly against the accused. It has been held that the admission
would operate unfairly against the accused if the statement was obtained in an oppressive
manner, or against the wishes of the accused . (see Callis v Gunn (1) at page 680. In the
present case the only circumstances which109 are relied on as forming the basis on which
the trial judge should have exercised his discretion to exclude the warn and caution
statement are twofold namely, firstly that there was discrepancy between the two police
witnesses as to the place at which the statement was taken because while one officer said
that it was taken in the inquiry office at Chadiza Police Station, the other said it was not
taken in that office, secondly that the same witnesses differed in their evidence as to the
number of persons present at the time of the taking of the statement since one of them said
that there were two officers present while the other said that there were three officers. The
trial judge considered both these discrepancies and found that they did not strike at the root
of the case. He also considered the question of exercising his discretion to exclude the
statement and came to the view that there was nothing to justify taking such a step. We
uphold his reasoning as the circumstances relied on for the reposition that the discretion
should have been exercised do not suggest that the statement was taken in an oppressive
manner, nor indeed do they suggest any other impropriety on the part of the police officers
present at the time of the taking of the statement. As this court succinctly put it in
Chinyama and Others v The People (2) at page 434

"the discretion should be exercised where the court is satisfied that notwithstanding
that the statement was made voluntarily in the sense that there were no inducements, etc.
had it not been for the unfair conduct or impropriety the accused might not have made the
statement or might have provided answers to questions which subsequently formed the
basis of the statement."

In the current case no occasion arose to necessitate the exercise of the discretion. This
ground therefore fails also.

The next point counsel took up on behalf of the appellant was that the confession statement
was exculpatory. We are at a loss to appreciate this reasoning because in their plain every
day meaning the words used by the appellant in the warn and caution statement amount to
the confession that the third person named gave the appellant a powder which was said
would cause the death of the deceased should the deceased take it after it had been
introduced into the Kachasu which the appellant was to offer to, the deceased. The
appellant said in the statement that he religiously followed the instructions the third person
had given him. The result was that the deceased died.

It is trite law that an agent, who commits an act on behalf of principal knowing fully its
criminal consequences, is as guilty of the resultant crime as the principal himself. A person
can only escape criminal liability if through mental incapacity he is incapable of appreciating
and understanding the nature of the act he is sent to perform on behalf of his principal or
appreciating the probable consequences of the act. A ready example would be a child of
tender age, namely one under the age of eight years (See Section 14 (1) of Cap 146) who is
sent to take property of another person in circumstances which could constitute the offence
of theft if the taker was a person of full age and mental capacity. In that 110case the
child would be regarded as an innocent agent. One would equally be criminally blameless if
he commits a criminal act under compulsion where there was a present threat to endanger
his life. (See Section 16 Cap 146). The same would be the case if the agent was suffering
from insanity as envisaged by Section 12 of Cap 146.
In the current case there is nothing to suggest that the appellant is or that he was at the
material time a person suffering from a deficient mental capacity or that he acted under
compulsion. He was quite free to disassociate himself from the expressed evil intention of
the other person, who the appellant says, sent him to administer the noxious powder to the
deceased. As we see it this is a classic case of aiding and abetting. In the result the
appellant cannot be allowed, after he has done the evil deed, to disclaim responsibility for
that deed. The submission on this point therefore fails.

Mr. Ngenda, in his next submission, accused the prosecution of dereliction of duty in failing
to call Stephen Mwale, that is to say the man who was initially jointly charged with the
appellant with the murder under review. That man was discharged after the State entered a
nolle prosequi in his case. It should be clarified that that is the same Stephen Mwale who
features in the appellant's warn and caution statement as the man who had sent him to
administer the poisonous powder.

The law relating to the prosecution's duty to call witnesses was lucidly stated in Dallison v
Caffery (3) at page 618 where Lord Denning, MR said:

"The duty of a prosecution counsel or solicitor, as I have always understood it, is

this: if he knows of a credible witness who can speak to material facts which tend to show
the prisoner to be innocent, he must either call that witness or make his statement available
to the defence. It would be highly reprehensible to conceal from the court the evidence
which such a witness can give. If the prosecuting counsel or solicitor knows, not of credible
witness, but a witness who he does not accept as credible, he should tell the defence about
him so that they can call him if they wish."

Lord Justice Diplock in the same case called as erroneous the contention that a prosecutor
had a duty to call all evidence known to him. The Lord Justice said at page 622:

"This contention seems to me to be based on the erroneous proposition that it is the

duty of the prosecutor to place before the court all the evidence known to him; whether or
not it is probative of the guilt of the accused person. A prosecutor is under no such duty. His
duty is to prosecute, not to defend. If he happens to have information from a credible
witness which is inconsistent with the guilt of the accused, or although not inconsistent with
his guilt is helpful to the accused, the prosecutor should make such witness available to the
defence."111

In this case the prosecution entered a nolle prosequi in the case, of Stephen Mwale and he
was then discharged because the only evidence if one call it evidence which the prosecution
had against him was that contained in the extra-judicial statement given by the appellant.
That statement implicated Mwale as an aider and abettor to the commission of the murder.
It cannot therefore be said that the prosecution had any evidence of a credible witness
which tended to show the appellant to be innocent. We accordingly dismiss this contention
also as lacking in merit.

Mr. Ngenda then attacked the evidence of the Public Analyst and stated that although it
concluded that rogor was present in the specimens removed from the deceased's stomach,
it fell short of proving that rogor could kill. Therefore the aspect of causation between the
appellant's act of administering the powder and the death of the deceased had not been
established, he argued. However, as Mr. Munthali said in reacting to that argument, the
cumulative effect of the prosecution evidence established causation quite clearly. The
appellant himself said that the third man who gave him the powder told him to introduce it
into kachasu which the appellant was to offer to the deceased, the reason for introducing
that powder into the kachasu was that the third man wanted the deceased to die and that
the appellant did as directed. The deceased's widow said in her evidence that earlier in the
day of 16th August 1983 the deceased worked around his home and in the afternoon visited
some friends' home with her. However, in the night, after taking the doctored kachasu, he
was taken ill, complaining of a dry and painful throat. His condition progressively
deteriorated until he died the following day. The Pathologist who did the autopsy on the
deceased's body came to the conclusion that the cause of death was poisoning. This
conclusion was buttressed by the determination of the Public Analyst that the specimens
from the deceased's stomach contained rogor, a pesticide. This court takes judicial notice
that a pesticide is harmful to man's health. Therefore on the basis of the post mortem
finding that the cause of death was poisoning, it is irresistible to conclude that that
poisoning was from the pesticide, the rogor. It follows that the powder which the appellant
introduced into the deceased's drink had caused the death as designed by the man from
whom it was collected, and that powder was the rogor. The linkage is thus quite clear.

It follows from the foregoing assessment of the grounds of appeal and the submissions in
support of them that we uphold the finding of the trial judge that the appellant was guilty of
killing Andereya Mwanza with malice afore thought, in short murder, as charged. We are not
persuaded by the contention of Mr. Ngenda that the evidence adduced by prosecution did
not prove mens rea and therefore that even if we find that the act committed by the
appellant and which in consequence caused the death was unlawful, we should find him
guilty of the lesser offence of man slaughter.

By Section 204 (b) Cap 146, malice afore thought shall be deemed to be established by
evidence proving inter alia,112

"Knowledge that the act or omission causing death will probably cause the death of or
grievous harm to some person although such knowledge is accompanied by indifference
whether death or grievous bodily harm is caused or not, or by a wish that it may not , be
caused."

On examination of the confession statement it is clear that the words used by the man who
instructed the appellant to administer the rogor did impart knowledge to the appellant that
the act he was being requested to commit would probably cause the death of Andereya
Mwanza. The relevant portion of the confession statement states,

"he said to me get this stuff in this cup and go to Andereya Mwanza's house and on
your arrival there you will apply in this cup kachasu beer which you must give him to drink,
I want him to die because he has given me a lot of problems."

This case therefore falls squarely in the purview of Section 204 (b) Cap. 146 as regards
the proof of mens rea.

In supporting the conviction one of the pieces of evidence Mr. Munthali relied on was the
confession which the appellant gave to the village headman Dofilo Sakala, the second
prosecution witness. In this court that confession did not engender any controversy as the
appellant's counsel said almost nothing about it. Despite this we feel we must say
something about that confession. In the case of Chibozu and Another v The People (4) this
court held that a village headman was a person in authority and therefore that he had to
administer a warn and caution before taking a confession from an accused person. The
court in effect ruled that that confession was inadmissible because it was taken in
contravention of the Judges' Rules. As that confession was the only evidence relied on by
the prosecution in support of the conviction at the trial, the advocate who appeared for the
State at the ensuing appeal, Mr. R Balachandran, declined to support the conviction. His
intimation was accepted by the court an the conviction was quashed and the appeal
allowed.

On examination of the Judges' Rules it is clear that those rules were designed to guide
police officers in dealing with suspects and prisoners in the course of investigating crime.
This court takes judicial notice that the training of police officers includes instructions in
administering the warn and caution. There is no suggestion that these rules are intended to
apply to persons other than those whose normal duties pertain to investigating crime. We
are unaware of any law or convention which constitutes a village headman as an officer
charged with responsibility of investigating crime. In practice when a person suspected of
committing a crime is reported to a village headman this is essentially for the purpose that
the headman should use his good office to cause the suspect to be conveyed to the
authority of the police, he is the intermediary between the inhabitants of his village and the
police, sometimes through his chief, a typical headman therefore is a man who would not
know, nor should he be expected to know, what creature the warn and caution is. On a
careful review of the position we are satisfied113 that the Judges' Rules do not
contemplate, as persons who should administer the warn and caution to suspects, persons
like village headmen because it is not their normal responsibility to investigate criminal
cases. In the event we are of the view that our decision in Chibozu v The People (4) was
wrong. Moreover it will be noted that our decision in, Chibozu is in flat contradiction with our
earlier decision in George Musongo v The People (6) where we held that whereas failure on
the part of the police officer to administer a caution constitutes an impropriety in respect of
which a trial court may exercise a discretion in, favour of the accused, similar failure on the
part of any other person in authority (or indeed anybody else) does not necessarily amount
to an impropriety as it cannot reasonably be expected that a person other than a police
officer, should of necessity appreciate the niceties of what should and should not, be done in
such circumstances.

The problem before us therefore is that we have made case law which we have now realised
is indefensible. The principle of stare decisis requires that a court should abide by its ratio
decidendi in past cases.

Put simplistically in order to have certainty in the law decisions of courts should be
consistent and should not be so readily changeable as to make it uncertain at any given
time what the law is on a given issue. In order to uphold this principle therefore past
decisions should not be exploded for the sole reason that they are wrong. Courts should
stand by their decisions even if they are erroneous unless there be a sufficiently strong
reason requiring that such decisions should be overruled. As this Court held in Kasote v The
People (5)

"The Supreme Court being the final court in Zambia adopts the practice of the House
of Lords in England concerning previous decisions of its own and will decide first whether in
its view the previous case was wrongly decided and secondly if so whether there is a
sufficiently good reason to decline to follow it."

We have already pointed out that Chibozu was wrongly decided and the next question for us
to consider is whether there is sufficiently strong reasons for us to decline to follow the
decision in that case, it is our considered view that justice was not served in Chibozu
because the symbolic scales of justice was mean that just as an accused person should not
be convicted unless there is sufficient and cogent evidence proving his guilt beyond
reasonable doubt, the State also should not be made to lose a case unless the evidence it
adduces cannot, in law, support a conviction; that way the scales are balance. On this basis
we come to the conclusion that sufficiently strong reason does exist to warrant the
overruling of Chibozu on the basis that it is a non sequitur. We therefore hold that Chibozu
is no longer good law to the extent considered in this judgment and it is therefore
overruled.

Reverting the appeal in this case, we have already held that the conviction is sustainable. It
is consequently upheld and the appeal dismissed.

Appeal dismissed114

CHARLES LUKOLONGO AND OTHERS v THE PEOPLE (1986) Z.R. 115 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., CHOMBA AND GARDNER, JJ.S.
16TH JULY, 1986 AND 28TH JANUARY, 1987
(S.C.Z. JUDGMENT NO. 26 OF 1986)

Flynote

Criminal law and Procedure - Confessions - Judge's Rules in force in Zambia - Interrogation
of persons in custody without administering warning - Effect of.
Evidence - Confessions - Interrogation of persons in custody without administering warning
- Effect of.
Evidence - Medical evidence - Necessity to call
Evidence - Dereliction of duty by police - Effect

Headnote

The appellants were each charged and convicted of two counts of murder and one count of
aggravated robbery. There was evidence that the appellant had been questioned by the
police while in custody but before being warned and cautioned. On appeal it was argued
that the Judges Rules at present in force in Zambia required that persons in custody should
be warned before being questioned and their answers were therefore inadmissible. It was
further argued that footprints which were seen by the police should have been compared
with the shoes of the accused persons; that the identification parade was unfair because the
suspects were the only ones not wearing shoes; and that the articles found after improper
questioning should not have been admitted in evidence.

Held:
(i) Before admitting a statement obtained contrary to the Judges' Rules a trial court
should consider whether the prejudicial effect of the evidence outweighs its evidential
value.

(ii) The Judges' Rules applicable in Zambia are the 1930 rules set out in paragraph 1118 of
the 35th Edition of Archbold.

(iii) If medical evidence is available it should be called, rather than a courts relying on its
 own opinion.

(iv) Where evidence available only to the police is not placed before the court, the court
must presume that, had the evidence been produced, it would have been favourable to
the accused. This presumption can only be displaced lay strong evidence.

(v) At identification parades, accused persons should not be dressed conspicuously

differently from the others taking part in the parade

(vi) Real evidence which is repentant to a fact in issue is admissible notwithstanding that
it is unfairly or illegally obtained.

Cases referred to:

(1) Zeka Chinyama and Other v The People [1977] Z.R. 426 115
(2) Chileshe v The People (1972) Z.R. 48
(3) Zondo and Others v The Queen [1963-64] N.R. & Z.R. 97
(4) Chimbo and Others v The People (1982) Z.R. 20
(5) Kalebu Banda v The People (1977) Z.R. 169
(6) John Timothy and Feston Mwaba v The People (1977) Z.R. 394
(7) Kapuloshi and Others v The People (1978) Z.R. 200
(8) Chisha v The People (1968) Z.R. 26
(9) Musonda v The People (1968) Z.R. 98
(10) Liswaniso v The People (1976) Z.R. 277
(11) R v Turnbull and Another [1976] All E.R. 549

For the appellant: Sebastian Zulu, S. Zulu and Co.

For the respondent: L.S. Mwaba, State Advocate

Judgment

CHOMBA, J.S.: delivered the judgment of the court.

The appellants in this case were convicted of three counts of which the first two charged
murder and the third charged aggravated robbery. They each received the minimum
sentence of fifteen years imprisonment with hard labour in relation to the charge of
aggravated robbery and in so far as the murder charges were concerned the capital
punishment was imposed on them.

The murder charges related to the brutal slaying of two security guards namely Geoffrey
Nyirongo and Pepala Banda who worked for the National Breweries and the Forest
Department, respectively in Chipata. The two guards had reported for duty on the 19th of
June, 1983 and the following day. Pepala Banda was found battered to death and lying
within the precincts of his working place, while Geoffrey Nyirongo was found unconscious in
the National Breweries premises. The latter was taken to hospital at Chipata but died within
as few days. When these grim discoveries were made it was also noted that a safe at the
National Breweries had been blown open with explosives although the previous day it had
been intact. There was evidence to show that at the material time this safe contained over
two thousand kwacha in cash and documents which included four motor vehicle certificates
of fitness, one motor vehicle blue book and other articles. These contents were nowhere to
be seen immediately on the discovery o the blowing open of the safe.
Det. Const. James Nkhata, who was prosecution witness No. 9 (PW9) took finger prints at
the scene of the robbery at national Breweries early in the morning of the 20th June, 1983.
Meanwhile, Det/Insp. Dereck Mwangala, who was PW8, having previously received a report
about the criminal outrages under consideration, left Chipata and proceeded to Mutenguleni
in search of the culprits. As he drove along Chipata to Lusaka Road he found two persons
who waved him down and, when he stopped, asked him for a lift. The two, according to the
observations of1116 the Det/Insp. behaved suspiciously and it was observed that one of
them had fresh multiple cuts on his face and arms. The Det/Insp. picked up the two and
conveyed them to Chipata Police Station for questioning. These two turned out to be the
second appellant Christopher Kambita and one Isaac John Nkhoma, who, but for the fact
that he died before the trial of this case started, would have been among the accused, now
the appellants.

The same morning of the 20th of June, 1983, Point Mwanza, PW3 was driving a Mercedes
Benz truck from Chipata proceeding towards Kazimule. In this truck there were also Adam
Mwanza, the fourth prosecution witness and Bulisani Phiri the fifth prosecution witness both
of whom were lorry mates. These three witnesses said that at a turn-off known locally as
Kauzu Farm they saw three men emerge from a bush and wave the truck driver down;
when he stopped the three asked for a lift to Katete, but as he was not going that far Point
Mwanza agreed to convey them up to Kazimule. The three prosecution witnesses in that
truck testified that one of the men they gave a lift to had injuries on his face. Point Mwanza
drove on up to Mutenguleni where he stopped transitorily and when he left the vehicle his
lorry-mates and the other passengers remained behind. Shortly afterwards and before the
driver returned to the truck two of the hitch hikers on the truck walked away, not to be seen
again that day. Only the hike with his injuries remained in the lorry.

In the mean time, after dropping off the second appellant and the deceased, Isaac Nkhoma,
Det/Insp. Mwangala proceeded to Mutenguleni where on arrival he found a man in Point
Mwanza's truck. This man had facial injuries which bore a resemblance to those noticed
earlier on the second appellant's face. The Dep/Insp. conveyed this man, who has since
become known as the first appellant to Chipata Police Station.

Meanwhile in the month of July, 1983, an identification parade was held at Chipata Police
Station. The identifying witnesses were Point Mwanza, Adam Mwanza and Bulisani Phiri. All
these witnesses picked out the first appellant as the man who had facial injuries amongst
the three to whom the witness had given a lift. Point Mwanza and Adam Mwanza also
identified the third appellant as having been amongst the three persons to whom they
gave a lift to Mutenguleni, while Adam Mwanza similarly identified the fourth appellant
Johely Mwalubange.

According to Det/Sub Insp. Lawrence Siamunyati, who was PW7, when all the appellants
were in custody they individually led him and other police officers in the investigation team
to various places including the scene of the offences, a place off Lusaka road and a place
near the Chipata Airport. From these places a number of articles, including motor vehicle
certificates of fitness, a motor vehicle blue book and I.O.U. credit notes and a wad of
partially burned bank notes were recovered. The certificates of fitness, blue book and the
various receipts and invoices so recovered were identified by Goodwell Kabanda, who was
the first prosecution witness and was employed as a cashier at National Breweries, Chipata
as belonging to the said National Breweries.117

Det/Sub. Insp. Lawrence Siamunyati also testified that on the 20th June, 1983, he
recorded a warn and caution statement from the second appellant and the deceased suspect
earlier mentioned. On 22nd June 1983 he took a warn and caution statement from the first
appellant and on 7th July, 1983, he took one from the third appellant. Finally, on 21st July,
1983, he recorded a warn and caution statement from the fourth appellant. Suffice it to
state at this stage that when all these statements were tendered in evidence the defence
lawyer for all the appellants at the trial objected to them on the ground that they were
obtained through duress. A trial within a trial was held and needless to state that the police
witnesses averred that the statements were freely and voluntarily made while the
appellants, all of whom gave sworn evidence, alleged to the contrary. The appellants
testified that they were all subjected to torture and, in the case of the second appellant, to
a deprivation of drinking water and food. After the trial within the trial Sakala, J., as he then
was, concluded that all the statements of the appellants were freely and voluntarily made
and admitted them in evidence.

The only ones to give evidence in their defence in the main trial were the first and second
appellants. It suffices to state that they both denied involvement in any of the three
offences charged. The third and fourth appellants exercised their right to remain silent. The
first appellant called one defence witness namely Violet Njovu and she strove to prove an
alibi on behalf of the first appellant.

The foregoing is only a skeletal aspect of the evidence given at the trial. Other facts of the
case will emerge as they become relevant to the points to be reviewed in this judgment and
as they were raised in the course of hearing the appeal. Before this court all the appellants
were represented by Mr. Sebastian Zulu, holding the briefs on behalf of the Legal Aid
Department. The State was represented by Mr. L. S. Mwaba, a State Advocate.

The first ground argued on behalf of the appellant was that the investigating officer,
Det/Sub. Insp. Lawrence Siamunyati and his co-investigating officer, Det./Insp. Mwangala,
breached the third and fourth of the pre 1964 Judges Rules. These rules state as follows, in
so far as they are relevant to the arguments presented:

"3. Persons in custody should not be questioned without the usual caution being
administered

4. If the prisoner wishes to volunteer any statement, the usual caution should be
administered."

Mr. Zulu cited many passages from the evidence of these two police officers, showing that
after the appellants had been confined in custody they each made self incriminating
utterances when they led the police to the locus in quo, and other places where, as we have
already shown in the outline of facts of the case, various articles of evidential value were
recovered. Mr. Zulu cited the following passages in particular from the evidence of
Det/Sub. Insp. Siamunyati:118

"On 21/6/83, Charles Lukolongo led me and Det. Insp. Mwangala to the scene at the
National Breweries and at the Forest Department . . . and to a place where they had been
hiding since their arrival in Chipata."

Mr. Zulu urged the court to infer that the passage meant that the appellant named therein
had told the police that that was the place where he and his colleagues had been hiding
before committing the crimes. At page 17 of the appeal case record, Mr. Zulu cited the
passage which reads as follows:
 "On 21/7/83 the fifth man Johely Levy Mwalubange was brought from Lusaka.
During interview he led us to the scene and place where they were hiding. Five batteries
were found and head of a torch said to be of Isaac Lungu was found."

From page 18 Mr. Zulu quoted the passage that follows:

"At the scene, I found a blue cap which Charles Lukolongo said was of John Nkhoma
. . . There was also a lump of mud which the accused stated was being used when putting
explosives."

As to PW8's evidence Mr. Zulu quoted the following passages at pages 22, 23 and 24:

"From the Forest Department office I went to National Breweries where he (i.e.
Christopher Kambita, second appellant) said they broke and blew off the safe . . . He
showed me a table where the watchman was left lying."

At page 23:

"We branched off into the bush. We walked to a place where Kambita showed me a
well where he said he had dropped all iron bars and other items he did not mention."

At page 24:

"Thereafter I went with Lukolongo Chibuye (the first appellant) who directed me in
the same places earlier directed by Kambita . . When we reached the office of National
Breweries he demonstrated to me how they connected the detonation from the switch of the
lights to the safe. He said he was with the late Isaac Nkhoma while Isaac Lungu (the third
appellant), Christopher Kambita (the second appellant) and Levy Mwalubange (the fourth
appellant) were outside holding the watchman. He explained the explosives exploded and
burnt them."

It should be stated that apart from such quoted self incriminating statements and the warn
and caution statements, which will be dealt with later on in this judgment; the only other
evidence against the appellants was circumstantial. Mr. Zulu contended that those
self-incriminating statements clearly influenced the trial judge in coming to the conclusion
that the only inference that could reasonably be drawn from the circumstantial evidence
was one of guilt. That was the more so, he argued, since in the judgment the learned trial
judge119 did not show that he had warned himself that he would not take into account
those inadmissible statements. To that end counsel submitted that the trial judge had
misdirected himself.

In regard to that ground of appeal and the consequential arguments Mr. Mwaba countered
that the injunction imposed by the Judge's Rules against questioning persons in custody
related only to persons who had been arrested as opposed to those merely apprehended.

With due respect to the State Advocate, his submission was based on a misapprehension as
to which Judge's Rules apply to Zambia. It should be appreciated that in 1964 the British
Home Office promulgated new Judge's Rules in place of those which had been made by the
same office on June 24, 1930. The first rule of the 1904 rules stated as follows:
 "When a police officer is trying to discover whether, or by whom, an offence has
been committed he is entitled to question any person whether suspected or not, from whom
he thinks that useful information may be obtained. This is so whether or not the person in
question has been taken into custody, so long as he has not been charged with the offence
or informed that he may be prosecuted for it."

It will be noted that this rule, in contradistinction to rule 3 of the pre-1964 Judge's Rules,
authorises questioning of prisoners in custody as long as they have not already been
charged. However, as it was rightly pointed out by Baron D.C.J., in the case of Zeka
Chinyama and Others v The People (1) at pages 438 where he quoted from the judgment of
the High Court in the case of Chileshe v The People (2), the 1964 Judge's Rules have never
been applied to Zambia, but it is clear from the case of Zondo and Others v The People (3)
that the 1930 rules are the ones which have been applied to Zambia. In the case of Zondo
just sited Conroy, C.J. stated at page 101 as follows:

"The new Judges' Rules have not been applied to this country as policemen have not
been administratively enjoined to follow them. When I Speak of the Judges' Rules I
therefore refer to the rules set out in paragraph 1118 of the 35th edition of Archbold."
An examination of the rules to which Conroy, C.J., had recourse shows that rule 3 is exactly
in the terms that we have quoted it earlier on in this judgment. It therefore behoves officers
investigating crime to maintain a strict adherence to the rules applicable in Zambia and to
avoid acting in accordance with the 1964 rules.

In passing we would wish to observe that it is in the knowledge of this court that the
practice by investigating officers of questioning prisoners in custody without first
administering a warn and caution has been going on for many years. In the case of Chileshe
v The People (2) the trial judge was constrained to restate the correct situation as to which
rules applied to Zambian because when hearing the appeal in that case he had observed
that the trial magistrate had admitted in evidence a confession which was obtained in
violation of the third rule of the pre-1964 Judges' Rules but in conformity with rule 1 of
1964 rules in so120 far as the two related to persons in custody. Five years later in the
case of Chinyama and Others v The People (1) this court stated at page 438 as follows:

"It is necessary for us to continent on a practice of investigating officers which is to

be deprecated. The Judges' Rules concerning the administering of a caution before inviting a
reply to a charge seem to be regularly followed. On the other hard the rules concerning the
proper conduct of officers in relation to persons in custody and persons whom it has been
decided to charge are not followed. As Chomba, J., pointed out in Chileshe vs. The People
the English Judges' Rules were substantially revised in 1964 but these rules have not been
applied to Zambia; we still operate under the pre- 1964 rules."

The fact that almost ten years after Chinyama v The People (1) we are skill dealing win the
same issue of the treatment of prisoners in custody is testimony to the fact that police
officers have not paid heed to the utterances made by the judges in the cases we have cited
herein.

Mr. Mwaba submitted further that even if the statements referred to by the appellants'
counsel were improperly admitted, it should be borne in mind that it is not mandatory to
exclude statements obtained in breach of the Judges' Rules but rather, that a judge has only
discretion to do so.

We are mindful that Judges' Rules are rules of practice and therefore that they have no
force of law. However, we are of the view that where the prejudicial effect of any given
piece of evidence far outweighs its probative value, justice demands that such evidence
must, per force, be excluded. It is our considered opinion that the prejudicial effect of the
statements in dispute in this case did outweigh their evidential value. The trial judge should
therefore, in his discretion, not have allowed the prosecution to tender them in evidence.
That he did admit them was a serious misdirection on his part.

Mr. Mwaba urged upon us that if we should find the trail judge to have misdirected himself
in this regard we should apply to this case the proviso to Section 15 sub Section 1 of the
Supreme Court Act. Cap.52 of the Laws. We consider it premature at this stage to enter
upon a discussion of that proviso. On the other hand having found, as we have done, that
the evidence complained of was wrongly admitted and therefore that the trial judge
misdirected himself, we allow this ground of appeal.

Mr. Zulu next attacked the reception in evidence of statements said to have been made
by the appellants under warn and caution. To this end he first pointed out a discrepancy in
the evidence of Det/Sub. Insp. Siamunyati in which he said at one stage that on the 22nd of
June, 1983, he charged the first and second appellants with the offence under review and
that when warned and cautioned in that regard, they both denied the charges. Mr. Zulu
contrasted that evidence with the fact that the warn and caution statement produced by
the same witness and which121 he said he had recorded from the first appellant novas a
confession. Counsel argued that if the first appellant denied the charges at one stage he
could not on the same day leave made a confession.

We shall summarily dispose of this argument by pointing out that when at the trial the first
appellant's warn and caution statement was offered in evidence its admission was objected
to on the basis that it had been obtained under duress. The present argument by Mr. Zulu is
therefore irreconcilable with the objection at the trial. It is untenable. In any event Mr.
Zulu's other submission regarding the warn and caution statements of all the appellants is
that they were obtained under duress. In this regard he complained about the trial judge's
finding that the scars which all the appellants had exhibited at their trial could not have
been the result of beatings they received from the police in order to induce them to confess.
Mr. Zulu contended that as the scars had been proved to exist on the bodies of the
appellants and in the light of the admission by Det./Sub. Insp. Siamunyati that the scars
could have been caused by an assault with a wire, only an expert medical witness could
affirm or disprove the appellant's claims that they every caused by beatings from the police.
It was further his contention that some of the appellant's were kept under interrogation for
unnecessarily prolonged periods as a way of inducing them to confess. In particular he said
that the first appellant's statement was taken two days after being confined in custody; and
that in the case of the fourth appellant four days elapsed between the date he was confined
and the date his warn and caution statement was taken. Only the second appellant had his
statement taken within ten hours of being taken into custody. Mr. Zulu criticised the trial
judge's findings that apart from the first appellant, the statements of the remaining
appellants were taken shortly after they were taken to the police station. He concluded that
had the trial judge found that the scars the appellants bore might have been the result of
assaults on them by the police or that they were kept in custody for unduly long periods
before getting statements from them the trial judge might have ruled against their
admission in evidence. To the extent that the judge failed to treat the statements as
suggested, he had misdirected himself, Mr. Zulu argued.

Mr. Mwaba disputed the contention on behalf of the appellants and supported the trial
judge's finding in accepting in the evidence the warn and caution statements. He submitted
that if the allegations of severe and brutal beatings were true as claimed by the appellants,
they ought to have complained in the committal court since the claims were that at the time
they appeared in that court they were still bleeding from the injuries they had sustained as
a result of the beatings. As to the scars, Mr. Mwaba argued that they were so insignificant
that the trial judge had not even noticed them. According to Mr. Mwaba the issue as to
whether or not there were any beatings fell to be resolved on the basis of credibility of
witnesses. To this end the trial judge preferred the evidence of the prosecution witnesses to
that of the appellants, he argued. The judge had even considered his discretion to exclude
these statements but had found no basis of doing so as the statements did not prejudice the
appellants, according to Mr. Mwaba.122

In resolving this argument we wish to hasten to point out that the reference by Mr .Mwaba
to the trial judge having considered the question of exercising his discretion to exclude the
statements was irrelevant to the arguments put forward by Mr. Zulu. The attack by the
appellant's counsel was this, put succinctly: the trial judge misdirected himself when he
found that the statements said to have been made by the appellants were freely and
voluntarily made. Firstly he ruled on insufficient evidence that the scars which the
appellants bore could not have resulted from beatings by the police as alleged. Had he
determined that the scars were the result of injuries received from beatings inflicted by the
police the judge would have found that the statements were not voluntarily made. Secondly
he erred in making the finding that apart from the first appellant all the others had their
warn and caution statements taken shortly after they were taken into custody. Had he
appreciated that they were kept from two o four days before they were made to give the
statements, he might have found that such extended periods constituted an inducement.
The statements should therefore not have been admitted. That was the argument.

During the trial within the trial all the appellants testified that they were assaulted by
several police officers who used a sjambok, an electric cable and a hosepipe. All of them
also showed to the court scars on their backs and claimed that those scars were the
remaining testimony of the beatings they received from the police during interrogation. The
first appellant swore that as a result of the injuries he received he was treated at the prison
clinic and that the treatment was recorded on prison file No 530. In his ruling after the trial
within the trial the trial judge stated that the issue of voluntariness would be resolved on
the basis of credibility. He observed that all the appellants had claimed that they had been
assaulted severely for prolonged periods. If what they claimed was true the trial judge
wondered how they could have walked after the assault, let alone how they were able to
be alive to attend their trial. He commended the police that in dealing with the case they
had acted with extra speed in completing the investigations. He further observed that with
the exception of the first appellant the warn and caution statements of the rest of the
appellants had been recorded within a matter of hours after being taken to the police
station. As to the claims of the appellants that the dorsal scars they bore were the result of
beatings, the judge ruled that in his opinion they could not be said to have been the result
of beatings. In the final analysis be ruled that the warn and caution statements were freely
and voluntarily made by the appellants. He admitted then in evidence and used them in
resolving the guilt of the appellants.

As Mr. Zulu stated, Det./Sub. Insp. Siamunyati not only admitted that the marks on all the
appellants' backs were scars, but he also significantly, admitted that one of the scars on the
first appellants back seemed to have been caused by an assault with a wire. This is
significant because each appellant claimed that in assaulting them, the police had used,
inter alia, an electric cable, which is an article similar to a wire. It is of local interest also
that the first appellant had said that123 the treatment record for his injuries received
from the police was on prison clinic file No. 530. It is our view that the concession by
Det/Sub. Insp. Siamunyati together with the reference to a medical record existing at a
prison clinic were ample indications which made it imperative that the trial judge should call
for medical evidence to verify the claims by the appellants. Instead of doing this he
contented himself in relying on his own non-medical opinion. We think that this attitude by
the trial judge amounted to another serious misdirection. What happened in this case is
similar to the situation that obtained in Chimbo and Others v The People (4). In that case,
which raised a similar issue whether the warn and caution statement was voluntarily made,
two accused persons had claimed at their trial that they had been severely beaten by the
police and had, as a result, attended a clinic for treatment. They even produced medical
reports to bear out their stories. The findings recorded in the medical reports were
consistent with the allegations of the accused persons. The trial judge, like in the present
case preferred to resolve the issue before him on the basis of credibility alone. He ruled that
if the beatings were as severe as claimed he should have expected the accused to have
sustained more serious injuries than were reflected on the medical reports. He believed the
police's evidence had found the warn and caution statements to have been freely find
voluntarily made. On appeal it was submitted on behalf of the accused that the trial judge
erred in handling the issue of voluntariness on the basis of credibility alone. In commenting
on that submission this court said at page 24 in the Chimbo case:

"There is a great force in the submissions made on behalf of the first and second
appellants. It is apparent from the record that no or inadequate consideration was given to
a number of important issues raised. We do not see how, in the absence of expert medical
evidence, any court can disregard a medical report and justify a bare belief on its part that
a severe beating must produce serious injuries. We do not see that such an argument is
even relevant to an inquiry concerned faith an allegation that a confession was extracted by
force. The Issues which we have already referred to were material and called for
consideration if a proper determination of the question of voluntariness were to be made.
An approach which fails to deal with all the issues raised and which gives little or no
consideration to those aspects of the evidence favourable to an accused person is
unsatisfactory. We are, in the circumstances, quite unable to say that had proper
consideration been given to all such issues, the earned trial judge would inevitably have
found that the prosecution had proved beyond all reasonable doubt that the confessions
were voluntary. It follows from this conclusion that we consider the confessions to have
been wrongly admitted and that the admission was a misdirection."

Although in the present case no medical report was produced enough evidence was before
the trial court to put it on inquiry. The first appellant's treatment record existed at a prison
clinic in Chipata and by124 invoking its power provided under Section 149 of the Criminal
Procedure Code the court could have called a witness to produce that record. That section in
the main gives power to any court at any stage of an inquiry, trial or other proceeding
under the Criminal Procedure Code to summons any person considered to have in his
possession evidence which appears to be essential to the just decisions of the case. Clearly
in this case the just decisions of the issue its the voluntariness with which the warn and
caution statements were made depended on a meticulous consideration of all the essential
arguments put forward by the prosecution as well as the defence including the calling of
medical evidence. It was not enough in our view for the judge to have resolved the matter
on the basis of credibility alone. It is a serious misdirection for any court to disregard
medical evidence, the existence and ready availability of which has been brought to its
attention. We therefore come to the conclusion that the war and caution statement of the
first appellant was wrongly admitted. We further think that that if the judge had inquired
into the first appellant's allegations as to police beatings he might have pursued the
allegations of the remaining appellants. In the result we consider that the taint which has
been cast over the admissibility of the first appellant's statement should be extended to the
statements of the second, third and fourth appellants. After all the four men were being
interviewed and interrogated contemporaneously. Therefore, we rule that the statements of
the second, third and fourth appellants were wrongly admitted also.

Having concluded that the warn and caution statements ought not to have been admitted,
we find it unnecessary to consider the connected argument put forward by Mr. Zulu that the
period of time the appellants spent in custody before they were required to make the warn
and caution statements tended to suggest the application of duress to induce the appellants
to confess.

The next point taken by Mr. Zulu touched on the judge's finding in regard to the nature of
the injuries the first appellant had at the time of his apprehension. We have already noted
that he had multiple cuts on the face and arms and that his explanation of how he had
sustained them was that a muzzle loading gun had exploded into his face while he was
trying to shoot a duicker. On the other hand the police urged the trial court to infer that the
injuries were caused by explosives when the appellant was blowing up the safe at National
Breweries. The trial judge regarded these injuries as one of the aspects of circumstantial
evidence on the basis of which he found that the only inference reasonably possible to be
drawn was one of guilt. The injuries had been the subject of a medical examination and the
doctor's report had stated that they were consistent with those sustainable from an
exploding gun. Mr. Zulu argued that the judge erred in this connection because the injuries
did not lend themselves to only one inference as to their cause.

We have carefully studied the judgment of the court below and find that the learned trial
judge did not draw the inference of guilt only on the basis of the evidence relating to those
injuries. He had in fact acknowledged in the judgment what the medical report had stated
as125 to the cause of the injuries. What the judge did was that he took the cumulative
effect of four pieces of circumstantial evidence and then concluded that the erect supported
only one inference, namely that of guilt. He was perfectly entitled to do that and therefore
Mr. Zulu's argument on this point does not find favour with us.

A further point was taken regarding a conflict between two police witness namely Det./Insp.
Siamunyati and Det./Insp. Mwangala as to the dates when the first appellant led them to a
place where a blue cap was said to belong to the deceased, Isaac Nkhoma, was found. He
contended that the conflict raised the question whether the first appellant ever led the
police to any place at all. While we accept that the discrepancy does indeed exist, we do not
consider it to be very material to the substance of the charges. In any event the first
appellant conceded in his evidence that he did lead the police to certain places in the course
of investigations and therefore the actual date when that was done is of no essence in our
view.

Mr. Zulu then queried the evidence showing that when each appellant was taken to a
particular place some item of property was found and when another was taken to the same
place a different item was recovered. He argued that if the appellants were together when
hiding those items of property then which ever of them was first to lead the police to the
place they were hidden should have enabled the police to recover all of them at one time
thereby obviating the need to take other appellants to the same place. He surmised that the
police planted the items where they were found. In the alternative he contended that the
deceased Isaac Nkhoma might have been the only one involved in the offences under
review and therefore the only one who led the police to the places of recovery of the items.
With due respect to Mr. Zulu, his argument on this point is like a double edged sword, in as
far as the effect of the argument is speculative. Suppose that the perpetrators of the
offences were in panic during their get away time, that could well explain why not all of
them would know exactly where each single item which might have been carried by another
companion was left. The argument was tempting the court towards a path of speculation
but we decline to be led down it. Mr. Zulu also referred to the discrepancy in the
prosecution evidence showing that while one witness said that one I.O.U. slip of paper
bearing the name Phiri was found another witness referred to three I.O.U. slips bearing the
names Phiri, Zulu and Kamanga. The only observation we can make on this submission is
that the power of observation of different persons varies. It is therefore not necessarily
surprising that the recollection of one witness is not exactly the same as that of another.

The next point taken on behalf of the first appellant was in regard to the finger print
evidence. The effect of the argument on behalf of that appellant was that the impressions
taken were those he left there after the police had tricked him into touching a number of
things at the scene of the crimes. We have examined the evidence both on the record and
that which is in the nature of exhibits. We have found that the folien 126 bearing the
finger impressions carry an endorsement showing that the prints were taken at 0700 hours
on the 20th June, 1983. The first appellant had not been apprehended by that time. He was
apprehended at Mutenguleni by Det./Insp. Mwangala at 11.00 hours on the 20th June,1983.
It is therefore manifest that he could not have been at the scene with the police before
07.00 hours on that date.

Mr. Zulu next dealt with the question of dereliction of duty. In this regard he reminded the
court that a cash box which had been feloniously removed from the ransacked National
Breweries premises was recovered by the police but no evidence was led as to whether
there were any finger impressions on it belonging to any of the appellants. In similar vein
he argued that all the appellants wore shoes at the time they were apprehended and that it
had been shown that whoever had broken into National Breweries premises had-left shoe
prints at the scene. He submitted that it was a dereliction of duty that the patterns of the
appellants' shoes were not compared with lithe shoe print patterns found at the scene.

Decided cases on the question of dereliction of duty show, inter alia, that where evidence
available only to the police is not placed before the court, the court must presume that had
such evidence been produced it would have favourable to the accused. The presumption is
not necessarily fatal to the prosecution case because the word "favourable" has been
construed to mean "in favour of" and nor to mean ":conclusive". (See the case of Kalebu
Banda v The people (6). In the case of John Timothy and Feston Mwaba v The People (6) it
was also held that in cases of failure to take finger prints the presumption in favour of the
accused will only be made if the article from which finger prints ought to have been taken
had a surface on which finger prints could be detected. In the case of Kapuloshi and Others
v The People (7) it was held that the presumption capable of being drawn in dereliction of
duty cases is isplaceable by a strong evidence to the contrary.

In the instant case it is true that one of the articles recovered by the police was a cash box
which used to be kept in the safe that was blown open at National Breweries... Goodwell
Kabanda the first prosecution witness, a cashier at National Breweries testified that the cash
box was one of the articles he identified as having been feloniously removed from National
Breweries at the material date. However, there was no evidence led as to the kind of
surface it had and in particular it has not been available to us in this court so that we might
determine whether the surface it had was such that finger prints could be detected from it.
We must observe that the necessary evidence regarding the kind of surface the cash box
had should have been produced by the prosecution witnesses or some of them. To the
extent that the prosecution did not give such evidence we hold that there was a dereliction
of duty to adduce it. Pursuant to the cases earlier referred to we must hold further that
there is a resulting presumption from that failure that had the relevant evidence been given
it might have been favourable to the appellants. The other aspect argued in support of the
argument that the investigators of this case were guilty of dereliction of duty was that
the127 prosecution failed to adduce evidence as to whether the pattern of shoe prints
found at the scene matched those of the shoes which the appellants wore when they were
apprehended. This aspect is especially relevant to the first and second appellants because
they were apprehended within hours after daybreak following the night when the offences
being considered here were committed. The evidence shows that Det./Sub. Insp Siamunyati
did notice shoe prints which led from the scene of the crimes to a tarmac road and then
petered out. Some of these prints had patterns while others were plain. It is evident that
while the appellants were in custody as suspects the shoes found on the them at the time of
apprehension were with the police. Police Insp. Thompson Zyambo, the 16th prosecution
witness, who conducted the identification parade on 22nd July, 1983, said that the reason
why the appellants did not have shoes on at the time of the parade was that their shoes
were at the prison. It is clear therefore that the evidence as to whether the patterns on the
appellants shoes were the same as those of the prints found at the scene was available to
the prosecution, as was also evidence regarding the possible presence of finger prints on
the cash box. The failure to adduce that evidence was a dereliction of duty. However, before
we can consider the outcome of this dereliction of duty we must move on to consider other
matters.

Mr. Zulu next called as unfair the manner in which the identification parade was held. He
said that of the fifteen persons in the parade from which the first, third and fourth
appellants were identified only the suspects had no shoes. To him that meant that the police
had deliberately that way made it easy for the identifying witnesses, namely Point Mwanza,
Adam Mwanza and Bulisani Phiri, to identify the appellants. We have examined the
identification parade pictures taken by Det/Const. James Nkhata and find that there were
indeed five persons shown clearly to be barefooted. It is unfortunately true also that those
shown as being identified by the witnesses were all barefooted.

The practice of allowing suspects in an identification parade to be manifestly and

conspicuously different from the others as regards dress was depreciated in the case of
Chisha v The People (8), and that of allowing identifying witnesses to see the accused
persons at a police station before the identification parade was conducted was equally
condemned in the case of Musonda v The People (9). To these unfair practices we must add
the one complained of in this case, namely allowing suspects to be barefooted while others
were not. Needless to mention that police officers conducting identification parades ought to
show the highest standard of fairness and impartiality. Evidence of identification based
parades which have been unfairly conducted is indefensible and in cases where such
evidence is the only evidence implicating an accused person a conviction will be quashed on
appeal.

In the instant case however the evidence of witnesses who identified the first appellant was
partly that one of the passengers they gave a lift in the Mercedes Benz truck had facial
injuries. When they stopped at Mutenguleni that man remained in the vehicle after the other
two companions of his had disappeared. The man was still in the truck when128 the
police arrived and later picked him up. The appellant's version on this point was that after
had sustained facial injuries as a result of the muzzle loading gun exploding in his face, he
went to the bus station at Mutenguleni to catch any transport which could take him to the
hospital. A man driving a Mercedes Benz motor vehicle came along and agreed to take him
to Saint Francis Hospital. He boarded that vehicle but shortly afterwards the police came
and picked him up.

Although the first appellant's version as to how he cone to be at Mutenguleni differs from
thirst given by three identifying witnesses already named, it is evident that the truck he was
found in when the police arrived was that driven by Mr. Point Mwanza. This was confirmed
by Det./Insp. Dereck Mwangala who testified that acting on information he had received
while at Chipata, he proceeded to Mutenguleni where he found Point Mwanza. The latter told
him that the police had been called in because of the man in his truck who had injuries.

As against the first appellant there is the further evidence which incriminates him, namely
his finger prints which were lifted from a window inside an office at National Breweries
shortly after the discovery of the breaking on the 20th of June 1983. Further still this
appellant led the police to a place where the cash box and a blue book certificates of fitness
for motor vehicles belonging to National Breweries and other articles the property of the
same company were recovered. These articles were identified by Mr. Goodwell Kabanda.
Cashier at National Breweries as property of National Breweries stolen in the night of 19-20
June 1983.

It is trite law that real evidence which is relevant to a fact in issue is admissible not
withstanding that it is unfairly or illegally obtained. (See Phipson on Evidence, 12th Edition,
paragraph 798 on page 342. Thus Liswaniso v The People (10) this court, after a wide
ranging consideration of cases from a number of Commonwealth Countries, had this to say
at page 286:

"On examination of the authorities on the subject with which we are here concerned
two opposing views emerge. The first one is that it is important in a democratic society to
control police methods and activities in order to secure a satisfactory assurance of respect
for the law it is argued that this can be achieved by denying to the police the right to use
the evidence that has been illegally obtained on the basis that it is better that guilty men
should go free than that the prosecution should be able to avail itself of such evidence. The
second is that it is not desirable to allow the guilty to escape by rejecting evidence illegally
procured and that what is discovered in consequence of an illegal act should, it relevant, be
admissible in evidence but that the policeman or anyone else who violates the law should be
criminally punished and/or made civilly liable for his illegal act. Although the law must strive
to balance the interests of the individual to be protected from illegal invasions of his liberties
by the authorities on one hand and the interests of the State to Justice persons guilty of
criminal conduct on the other, it seems to us that the answer does not He in the exclusion
of evidence of a relevant fact."129

In this case the investigating team contravened the Judges' Rules by interviewing the
appellants when they were in custody without first cautioning them. But the articles of real
evidence which were recovered pursuant to what the appellants said proved to be relevant
to this case. The fact, therefore, that the first appellant was the one who led the police to
the places where those articles were found was good evidence against him. It can be seen
therefore that in this case there is more evidence against the first appellant than just that of
identifying him in the identification parade. This court is consequently of the view that the
unfairness in which the identification parade was conducted does not, per se, strike a fatal
blow at the prosecution case.
As we have already noted upon a consideration of cases touching on dereliction of duty by
investigating officers, the presumption that evidence which was available to the police but
which they failed to adduce at the trial was favourable to the accused person can be
displaced by strong evidence to the contrary. In the instant case and in so far as the first
appellant is concerned there was evidence that his finger prints were found at the scene, he
was identified by three witnesses, that in the early part of the morning after the night the
offences under review were committed he was given a lift from the Chipata area, and in the
course of investigation of this case he assisted the police in the recovery of some of the
stolen property. The cumulative effect of these pieces of evidence is that they have resulted
in strong evidence which has displaced the presumption resulting from any dereliction of
duty of which the investigators of the case were guilty. We are satisfied, in the ultimate,
that had the trial judge correctly directed himself on the issues to be resolved he would
have inevitably found ample evidence to sustain the conviction against the first appellant on
all the counts. In other words we are of the considered view that the group of persons who
blew up the safe and stole the money and other items of property mentioned in the
indictment was one and the same one which cold bloodedly murdered the security guards
mentioned in the remaining two counts of the indictment. The first appellant was
undoubtedly one of the persons in that gang. Those persons had the common design of
staling from the National Breweries and using any amount of violence available to them to
overcome any resistance to the perpetration of the design. We would therefore apply to the
case against the first appellant the proviso to Section 15 (1) Cap 52 of the Laws and uphold
his conviction on all counts. His appeal therefore fails.

As to the second appellant he too was proved by the evidence of Det/Insp Dereck Mwangala
to have been in the Chipata area on the morning following the night of the offences under
review. The second piece of evidence against him is that he led the police to the place of the
recovery of one blue book for vehicle no ADB 1810, three certificates of fitness for vehicles
carrying registration Nos. ADB 152, ADA 5276 and ADB 2792, respectively. It was through
him also that the police recovered certain invoices marked "National Breweries". All these
documents were proved to be the property of National Breweries at Chipata and to have
been removed from the National Breweries on the130 occasion of the offences under
consideration. The effect of these two pieces of evidence was also to displace the
presumption resulting from any dereliction of duty of which the case investigators were
guilty. Like in the case of the first appellant we are satisfied and feel sure that had the trial
judge properly directed himself on the issues that fell to be resolved he would inevitably
have convicted the second appellant on all counts. We, therefore, by parity of reasoning as
regards the case of the first appellant, apply to the case of the second appellant the proviso
to section 15 Sub Section (1) Cap 52. We uphold his conviction on all the three counts and
dismiss his appeal.

The only evidence against the third and fourth appellants was that of identification by the
witnesses, Point Mwanza, Adam Mwanza and Bulisani Phiri. According to the principle
formulated in the case of R v Turnbull and Another (11) evidence of identification ought to
be treated with caution before it can be relied on as founding a criminal conviction. If the
quality is not good there is need to look for supporting evidence to rule out the possibility of
honest mistake in identification. It is our considered opinion that the evidence of
identification of both the third and fourth appellants was of poor quality particularly in the
light of the apparent unfairness in the manner in which the identification parade was
conducted. There was therefore need for supporting evidence. In the absence of the warn
and caution statements and the informal statement made when these two appellants were
in custody but when they were not duly warned and cautioned - all these statements having
been held in this judgment to have been wrongly admitted - the only pieces of evidence
which appear to support that of identification is the evidence that on 27th July,1983, that is
more than one month after the commission of the offences charged, the twain led the police
to a place where a bunch of partially burnt bank notes were found. The evidence of Mr.
Goodwell Kabanda, the cashier from the National Breweries, who identified some of the
stolen but later recovered items of property, was that the safe had contained some K2, 000
odd petty cash. He did not say how that money was made up, that is whether in bank notes
or coins. The partly burnt paper money recovered with the assistance of the third and fourth
appellants was not described as to how much it amounted to and Mr. Goodwell Kabanda
was not asked to identify it, assuming that it was identifiable. Another piece of evidence
appearing to support the identification evidence touching on the third appellant was that he
led the police to a place where a screw driver was recovered. This was said by Det/Sub.
Insp Siamunyati. As against the fourth appellant evidence was led by the said Siamunyati
that he assisted the police to recover some torch batteries as well as a part of a torch which
was described as a head. Neither the screw driver nor the batteries and torch seem to have
any material significance referable to the offences under review unless of course one looks
at the statements said to have keen made by the appellants when they were being
interviewed while still in custody. But we have already ruled that those statements were
inadmissible on the basis that they revere obtained in contravention of the Judges' Rules.
The net result is that what appears to be supportive evidence in the nature of the partly
burnt money, screw driver, batteries and part of a131 torch may not be relevant to the
changes. It must follow that the identification evidence adduced against the third and fourth
appellants had remained of poor quality at the end of the day. In the final analysis we are of
the view that the evidence against the third and fourth appellants is tenuous and therefore
that the convictions based on the evidence are not safe and satisfactory. We consequently
quash all of them and allow the appeals of these appellants.

1st and 2nd Appellants appeal dismissed.

3rd and 4th appeal allowed.

EVELYNE HELEN MWAMBAZI v WEDSON CHISHA MWAMBAZI (1986) Z.R. 132

(S.C.)

SUPREME COURT
CHOMBA, GARDNER AND SAKALA, JJ.S.
6TH NOVEMBER, 1986
(S.C.Z. JUDGMENT No. 27 OF 1986)

Flynote

Civil Procedure - Non - Attendance of plaintiff/petitioner on hearing date - Striking out of

list.
Divorce - Second petition - First petition dismissed without trial on merits - Whether second
petition can proceed

Headnote

The respondent had previously filed a petition for divorce. When the petition came for
hearing counsel for the respondent applied for an adjournment saying the respondent was
out of the jurisdiction and was not expected to return for twelve months. The trial judge
dismissed the petition without hearing any evidence. Thereafter, the respondent filed a
second petition, alleging the same facts as were alleged in the first petition which the court
was ready to hear. The appellant raised a preliminary point that the court had no
jurisdiction to hear the petition because the facts alleged were the same facts as alleged in
the first petition and were res judicata, and that the allegations in the first petition had been
dismissed.

Held:
(1) Where a plaintiff or petitioner fails to appeal on the date set for hearing the proper
course, under Order 35. Rule 2, is to strike out the cause front the list. It is not
proper to dismiss the action.

(2) Where allegations in a first petition have not been put forward or adjudicated upon
on the merits a second petition may proceed.

Legislation referred to:

High Court Rules, Cap. 50 0.35 r 2
Rules of the Supreme Court 0.35 r 1

Works referred to:

Rayden on divorce (12th Edn) Page 324. par. 23 132
[Note: Report starts here in printed version]

divorce petition on hearing was dismissed because an adjournment was refused, the same
facts alleged in the first divorce petition could be raised in a second divorce petition.

The appellant, that is the respondent in the divorce petition, has appealed against that
decision by a High Court judge. Mr. Sikota on behalf of the appellant has drawn our
attention to Order 35 Rule 1 of the English Supreme Court Rules ( The White Book) which
provides that, if at the trial of an action one party does not appear, the action may be
struck out of the list. He also referred us to the note to that rude in the white book where
the learned editor has indicated that, if the plaintiff does not appear but the defendant does
appear, the defendant is entitled to judgment dismissing the claim, and the effect of that
judgment is the same as if it were a judgment dismissing the action on the merits. Mr.
Sikota has argued that those authorities mean that the original allegations of the
respondent in the first petition were dismissed on the merits.

We have consulted the High Court record in respect of the first petition and we note that
when the case came on for trial the petitioner's Counsel asked the learned trial judge for an
adjournment on the grounds that his client was out of the country and was not expected to
return to the country for twelve months. The learned trial judge said that an adjournment of
twelve months was quite unreasonable and that the petitioner could have applied to the
court for an early hearing so that the petitioner's evidence at least could have been taken
and there would have been no need for an adjournment. For those reasons, the learned trial
judge said the petition was dismissed.

A further argument put forward by Mr. Sikota in support of his contention that the
allegations contained in the first petition should not be heard was based on Rayden on
Divorce, 12th Edition Volume 1 at page 324, paragraph 23. This paragraph is headed "Res
Judicata: Courts duty to inquire;'' and it continues: "allegations which have been
unsuccessfully put forward and disposed of in one suit cannot, subject to the statutory duty
of the court to inquire, so far as it reasonably can, into the facts alleged by the petitioner
and into any facts alleged by the respondent, be repeated in a second suit between the
same parties."

Mr. Sikota further urged that there was evidence that the parties had reconciled and had
gone back to live together after the presentation of the first petition. He agreed, however,
that reconciliation was not successful and that was the reason for the second petition.

Mr. Sikota further argued that the petitioner should have appealed against the order made
by the learned High Court judge in the first hearing. In view of the subsequent reconciliation
the question of an appeal against the order of dismissal is irrelevant. In our view failure to
appeal does not affect the question of whether the petition was or should be treated as
having been dealt with on its merits. Our own High Court Rules provide in Order 35 Rule 2
the following:133

"If the plaintiff does not appear, the court shall, unless it sees good reason to the
contrary, strike out the cause (except as to any counter-claim by the defendant), and make
such order as to costs, in favour of any defendant appearing, as seems just."

Section 10 of the High Court Act Cap 50 provides that the jurisdiction vested in the court
shall, as regards practice and procedure, be exercised in the manner provided by that Act
and the Criminal Procedure Code or by any other written law, or by such rules, order or
directions of the court as may be made under this Act, or the said Code, or such written law
and in default thereof in substantial conformity with the law and practice for the time being
observed in England in the High Court of Justice.

There is no default of an appropriate order in our rules and therefore, no justification for
considering the relevant rule for the time being observed in England. In any event, the
authority of the note to order 35 Rule 1 of the English Rules (the White Book) does not
support Mr. Sikota's argument. The note, which refers to the former Order 36 Rule 32,
refers to the effect of such judgment in default as being the same as if it were a judgment
dismissing the action on its merits and specifically states "i.e. it will give the whole costs to
the defendant." It does not say that the action shall be deemed to have been decided on its
merits, which Mr. Sikota contends for.

It is our view that the proper course for the learned trial judge when he was presented with
the first petition and an application to adjourn was, if he decided that an adjournment was
not an appropriate course to take, to order that the petition should be struck out of the list,
not that it should be dismissed. In the event the original allegations made by the petitioner
against the respondent were never put forward in open court and were never adjudicated
upon. Paragraph 23 at page 324 of Rayden therefore, does not apply. The wording of that
paragraph specifically states that allegations which have been unsuccessfully put forward
and disposed of in one suit may not be raised again. It is patently clear in his case that
none of the allegations contained in the first petition were ever put forward and were
certainly not disposed of after due hearing of evidence.

The learned trial judge in the second hearing dealing with the case which is at present
before this court said that he was quite satisfied that the allegations in the first petition had
never been disposed of. We agree with him. The preliminary point taken on behalf of the
respondent had no merit whatsoever. This appeal is dismissed and the petition in the
second action will proceed. Costs will follow the event. The appellant will pay the
respondents costs of this appeal.

Appeal dismissed.134