SYDNEY ZONDE, AARON SAKALA, EDWARD CHIKUMBI v THE PEOPLE

(1980) Z.R. 337 (S.C.)

SUPREME COURT
SILUNGWE,C.J., CULLINAN, J.S., AND MUWO, AG.J.
10TH MARCH, AND 23RD JULY, 1981
(S.C.Z. JUDGMENT NO. 20 OF 1981)

Flynote

Criminal law and procedure - Possession - Recent possession - Doctrine of - When

applicable
Evidence - Accomplice - Evidence of person in possession of stolen property - Need for
court to warn itself.
Evidence - Statements by accused - Exculpatory statements.
Evidence - Corroboration - Accomplice or witness with a possible interest of his own to
serve - Need for court to warn itself.

Headnote

The appellants were charged with aggravated robbery, the particulars being that they
jointly and whilst acting together robbed Kantulak Patel of property to the total value of
K5,535.00. The first appellant was convited as charged and given custodial sentence of
fifteen years imprisonment with hard labour. However, the second and third appellants
were covictted, not as charged, but of receiving stolen property, and were each sentenced
to six years imprisonment with hard labour.

They appealed to this Court against the said convictions and sentences on the ground that
the learned trial Judge erred in law by his failure to final and treat, as an accomplice or
witness with a possible interest of his own to serve, a witness named Keith Banda who
was found in possession of a TV set belonging to the complainant. Counsel submitted
also that the learned trial Judge misdirected himself in law by basing the

p338

convictions of the second and third appellants on their own exculpatory statements
contending that guilt was not the only inference reasonably possible.

The first appellant was found in possession of the complainant's property barely a few
hours after the complainant had suffered an aggravated robbery. The Supreme Court was
however satisfied that there was no misdirection by the trial judge either on the question
of voluntariness of the statements or the exercise of the court discretion.

1
Held:

(i) No appeal lies against the statutory minimum sentence of fifteen years
imprisonment with hard labour.
(ii) The doctrine of recent possession applies to a person in the absence of any
explanation that might be true when found in possession of the complanant's
property barely a few hours after the complainant had suffered an aggravated
robbery.
(iii) A person in whose possession stolen property is found is prima facie an
accomplice or witness with a possible interest of his own to serve and the trial
court must warn itself of the danger of acting on the uncorroborated endence
of such a person.
(iv) Although the appellants respective statements were exculpatory in relation to
the offence of aggravated robbery, they amply supported the offence in respect
of which the appellants stood convicted.

Cases cited:
(1) Machobane v The People (1972) Z.R. 101.
(2) Kapindula v The People (1978) Z.R. 327.

Legislation referred to:

Penal Code Cap. 146, s. 294 (1), 318 (1).
Supreme Court Act No. 41, 1973, a. 15 (1).

For the appellants: J.R. Matsiko, Legal Aid Counsel.

For the respondent: R.G. Patel, State Advocate.
_____________________________________
Judgment

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

The appellants were charged with aggravated robbery, contrary to section 294 (1) of the
Penal Code, Cap. 146, the particulars being that they jointly, and whilst acting together,
robbed Kantulak Patel of property to the total value of K5,535. After evidence had been
led in the matter by both sides, the first appellant was convicted as charged and given a
custodial sentence of fifteen years imprisonment with hard labour. However, the second
and third appellants were convicted, not as charged, but of receiving stolen property,
contrary to section 318 (1) of the Penal Code and were each sentenced to six years
imprisonment with hard labour. All three now appeal to this court against the said
convictions and Defences.

p339

It is not in dispute that an aggravated robbery took place in this case. What is in issue is
the propriety of the convictions and sentences. There are three grounds advanced on

2
behalf of all the appellants by Mr Matsiko, the learned Legal Aid Counsel. In the first
place, he contends that the learned trial Judge was in error by admitting in evidence the
warn and caution statements in that the appellants had stayed in police cells for about five
to six days without food, and that they had been subjected to questioning by the police for
the same period of time (i.e. five to six days) which questioning amounted to an
inducement designed to weaken their will.

It is noteworthy that in the court below, the defence objected to the admission of the warn
and caution statements on the basis that the appellants had been coerced by the police -
through physical violence - to sign pre-recorded statements the authorship of which they
attributed to the police. During the course of a composite trial-within-a-trial that ensued,
no mention whatsoever was made, either in the cross-examination of the prosecution
witnesses, or in the evidence adduced by the defence, as to any of the appellants having
been starved during the period of their detention in police cells. After hearing the
evidence of the prosecution and the defence, the trial court ruled that the appellants had
not suffered any physical violence at the hands of the police, as alleged, and that the
statements had in fact been made and signed freely and voluntarily by the appellants. In
the event, those statements were admitted in evidence. It is clear that the first time that
allegations of the appellants havig been starved during their detention in police cells were
ever made, was after the case for the prosecution in the main trial had been closed and the
appellants were giving evidence in their own defence. The court in its judgment once
again considered the question of voluntariness of the statements and reiterated its
satisfaction that the appellants had made them freely and voluntarily. In so doing it
rejected allegations of starvation on grounds that those allegations were mere fabrications
and an after-thought. We are satisfied that the trial court correctly directed itself as to the
voluntariness of the statements and that it came to a proper conclusion in the matter.

There is then the submission that the appellants were questioned by the police for a
period of five to six days prior to the recording of the warn and caution statements and
that the questioning amounted to an inducement designed to weaken the appellants' will.
This submission is obviously based on the assumption that the appellants must have been
subjected to persistent police interrogation during the period of detention in police cells.
However, the submission overlooks the clear evidence of the police and civilian
prosecution witnesses which was believed by the trial court and which discloses in no
uncertain terms that the police were carrying out investigations in the matter and
interviewing persons, including at least four civilian prosecution witnesses, three of
whom were found to be possession of certain items of property the subject of the charge.
There is nothing In the cross-examination of the police witnesses or the endence of the
defence that points to the appellants have fallen victims of persistent questioning.

p340

After considering the matter, the learned trial judge expressed satisfaction as to the
voluntariness of the statements. He then gave due consideration to the question of
exercising his discretion in the matter but could find no impropriety attaching to the
conduct of the police or any unfairness surrounding the making of the statements. He

3
specifically found that the appellants had been fairly treated by the police. In the event,
the statements were admitted in evidence. As we see it, there was no misdirection, either
on the question of voluntariness of the statements or the exercise of the court's discretion.

Secondly, it is contended that the learned trial judge erred in law by his failure to find,
and treat, as an accomplice or a witness with a possible interest of his own to serve, a
witness named Keith Banda, in whose possession was found a TV set belonging to the
complainant. This contention is well founded and the learned State Advocate readily
accepts the fact. As this court has held in several cases of which Machobane v The
People (1), and Kapindula v The PeopIe (2), are well-known, a person in whose
possession stolen property is fond is prima facie an accomplice or a witness with a
possible interest of his own to serve and a trial court must warn itself (and heed the
warning) of the danger of acting on the uncorroborated evidence of such a person. What
effect the misdirection has upon the present case depends on whether or not conviction
can be sustained by the application of the proviso to section 15 (1) of the Supreme Court
Act.

Finally, it is submitted that the learned trial judge mis-directed himself in law by
founding the convictions of the second and third appellants on their own exculpatory
statements contending that guilt was not the only inference reasonably possible.

As we have said at the beginning of this judgment, both the second and third appellants
were convicted only of the offence of being in pos - session of stolen property. Although
the appellants' respective statements are exculpatory in relation to the offence of
aggravated robbery, they amply support the offence in respect of which the appellants
stand convicted. Both were close associates of the first appellant and they received stolen
property from him in circumstances that suggest in the clearest way possible that they
knew that the property had been stolen or unlawfully obtained. The second appellant was
visited by the first appellant at 0600 hours - four-and-half hours after the aggravated
robbery had been committed. On that occasion the first appellant was carrying a radio
and other items of property all of which were later proved to belong to the complainant
and his wife. Two hours later, the second appellant received several blankets from the
first appellant and was told they were not for sale and that a friend of the first appellant
had given them to him. The second appellant then gave away most of those blankets to
prosecution witnesses. All those blankets were shown to be the property of the
complainant's wife.

The third appellant, on the other hand, said he was visited by the first appellant 0500
hours - three-and-half hours after the commission

p341

of the robbery. The first appellant had come in a motor vehicle containing a lot of goods
and was in the company of three other men. At his request the third appellant agreed to
accompany the first appellant to his house where he saw the first appellent and three
colleagues of his sharing the property. The third appellant then received from the first

4
appellant one pair of bed sheets, one bath towel, one black pair of ladies' shoes and a
ladies' wrist-watch. Both the second and third appellants assisted the first appellant in
selling the TV set to Keith Banda.

We are satisfied that there was abundant evidence on which to convict the second and
third appellants of receiving stolen property.

As regards the first appellant, his statement was a clear admission of his part in the
commission of the aggravated robbery. That apart, he was found in possession of the
complainant's property barely a few hours after the letter had suffered an aggravated
robbery and so, the doctrine of recent possession applied to him in the absence of any
explanation that might be true.

The appellants' alibi were rejected by the trial court and rightly so in our view
considering the nature of evidence that was before the trial court. All the appellants were
thus convicted on clear evidence. As we have said earlier, the trial court misdirected itself
in relation to the status of Keith Banda who should have been treated as an accomplice or
witness with an interest of his own to serve. We would invoke the proviso to section 15
(1) of the Supreme Court Act and dismiss the appeals against conviction in respect of all
the three appellants.

As to sentence, the first appellant received the statutory minimum of fifteen years'
imprisonment with hard labour against which no appeal lies. The position of the second
and third appellants is, however, different: both are first offenders and the property
received by them is of negligible value. In the circumstances, the sentence of six years'
imprisonment imposed upon each one of them comes to us with a sense of shock. The
sentence is set aside and in its place one of three years' imprisonment with hard labour is
imposed on each of these appellants to take effect from February 11th, 1978.

Sentence substituted

5
WILSON MWENYA v THE PEOPLE (1990) S.J. (S.C.)
SUPREME COURT
GARDNER, A.J.S., SAKALA AND CHIRWA, JJ.S.
7TH MARCH AND 19TH JUNE, 1990
(S.C.Z. JUDGMENT NO. 5 OF 1990)
Flynote
Appeal - Conviction for murder
Evidence - Corroboration - Whether the evidence of one suspect can corroborate the
evidence of another
Headnote
The appellant was convicted of murder. The particulars of the offence alleged that on
26th June, 1987 at Lake Mweru in the Nchelenge District of the Luapula Province of the
Republic of Zambia, he murdered Aston Mwape. He was sentenced to death. He
appealed against the conviction.
Held:

(i) Evidence in corroboration must be independent testimony which affects the

accused by connecting or tending to connect him with the crime. It may be
evidence which implicates him, that is, which confirms in some material
particular not only the evidence that the crime has been committed but also that
the prisoner committed it

Cases referred to:

1. Simon Malambo Chokwe v The People (1978) Z.R. 243
2. Emmanuel Phiri v The People (1978) Z.R. 79
3. R. v Baskerville (1916) K.B 658 (1985 Z.R. 126)
4. Shamwana & Others v The People (1985) Z.R. 41

For the Appellant: Mr. S K Munthali, Senior Legal Aid Counsel

For the Respondent: Mr. R O Okafor, Acting Principal State Advocate
_________________________________________
Judgment

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

The appellant was convicted of murder. The particulars of the offence alleged that on
26th June, 1987 at Lake Mweru in the Nchelenge District of the Luapula Province of the
Republic of Zambia, he murdered Aston Mwape. He was sentenced to death. He has
appealed against the conviction.

The case for the prosecution centred on the evidence of PWs 2, 3, and 5. The evidence of
these three witnesses was substantially similar. According to the prosecution case, the

6
three witnesses and the deceased were on the 26th of June, 1987 travelling in a boat of
which the appellant was the coxswain. They were travelling from Kashilu Island on Lake
Mweru to Kashikishi via Isokwe Island. The prosecution evidence established that upon
reaching Isokwe Island, the deceased disembarked. After sometime he came back to the
boat. The appellant had then demanded K10.00 from the deceased as the fare from
Kashilu to Isokwe. The prosecution evidence is that the deceased had stated that he had
no money but pointed to a house in front where he suggested he should be taken to
collect the K10.00 for the fare. The evidence of the prosecution further revealed that upon
arrival at the place pointed out by the deceased the appellant refused to drop him saying;
he was taking him to Kashikishi because he had wasted his time. According to PW2, as
they travelled on, the appellant pushed the deceased into the water using his right hand.
PW2 denied in his evidence that the deceased jumped into the water on his own because
of the K10.00. The evidence of PW2 also revealed that when he asked the appellant why
he had pushed the deceased into the water, the appellant replied "let us go; the young man
is a thief." According to PW2 when the deceased was thrown into the water, he cried for
help but the appellant sped away from him accusing the deceased to be a crook. This
witness testified that he saw the deceased trying to swim to the island which was more
than fifty metres away.

The evidence of PW3, a relative of the appellant, was substantially the same as that of
PW2. PW5 was PW2's wife who also narrated the same story. All the three witnesses
did not report the incident to the police; alleging that the appellant warned them not to do
so. According to PW2, after a day or so the appellant informed him that the man who
had been thrown into the lake had died. On 30th June, 1987 he, PW2, was arrested by the
police. He was detained in cells for five days only to be released after the appellant had
been apprehended.

The appellant gave evidence on oath in his defence. In his evidence he did not dispute
travelling with the three witnesses and the deceased up to Isokwe Island. He admitted
asking the deceased to pay K10.00 as a fare. According to the appellant the deceased at
Isokwe Island had told him that he was to give him the money at his place of destination.
He explained that as they travelled he noticed weeds on the engine. He then bent over to
remove the weeds. As he did so he heard PW2 saying that the boy had dropped into the
water. The appellant explained that when he heard PW2 say that he deceased had
dropped into the water he said "let him be, he will swim since its not far from the shore."
The appellant denied throwing the deceased into the water but said that the deceased had
jumped into the water on his own. He accused the prosecution witness of being liars;
pointing out that at the material time PW3 was asleep while PW5 had covered her head
and therefore they did not see what happened.

The learned trial commissioner having fully reviewed the evidence on record noted that
the determination of the case on the evidence of PWs 2, 3 and 5. He found that the
evidence of PW2 was plausible and convincing. He also found that PW2's evidence had
not been discredited in cross examination and that he did not contradict himself on any
material issue. The trial commissioner attached great weight to PW2's evidence, as in his
opinion he had told the court what he saw. According to the trial commissioner, PW2

7
was not an accomplice in the legal sense of the word because he did not participate in
throwing the deceased into the water. The trial commissioner, however, found that PW2
was a witness with an interest of his own to serve, because he was a suspect and had been
detained in police cells pending the arrest of the appellant, and that in the circumstances
PW2's evidence required corroboration. He warned himself against the danger of
convicting on the uncorroborated evidence of PW2. After citing the cases of Simon
Malambo Chokwe v The People (1) and Emmanuel Phiri v The People (2), the trial
commissioner observed that the two cases had laid down as a general rule that the
evidence of one suspect witness cannot be corroborated by the evidence of another
suspect. The trial commissioner, however, noted that in an appropriate case the court
may treat the evidence of one suspect witness as corroboration of the evidence of the
other suspect witness. He found this to be the position in the case before him. He found
that the evidence of PWs 3 and 5 corroborated the evidence of PW2. He accepted the
evidence of PWs 2 and 5 as being truthful although he held PW3 to be a witness with a
possible interest of his own to serve; the interest being to exonerate himself from having
taken part in drowning the deceased. In dealing with the evidence of PW5, the wife of
PW2, the trial commissioner noted that, although a possibility for bias existed to save her
neck or that of her husband, she was not biased because the appellant never suggested
that she pushed the deceased into the water. The trial commissioner found that the
appellant's denial that he saw how the deceased fell into the water was false. According
to the trial commissioner, if the appellant was not the man who threw the deceased into
the water he would have stopped to find out who pushed the deceased into the water or
why the deceased had decided to jump into the water. This he did not do. The trial
commissioner concluded that his failure to do so destroyed his innocence.

The appellant filed three written additional grounds of appeal. On behalf of the appellant,
Mr Munthali argued two grounds, the first one, which was quickly abandoned, was that
there was no proper identification of the body of the deceased. The second ground also
covered in the appellant's grounds was that malice aforethought had not been established.
The appellant's additional grounds can be summarised as follows:

(a) The trial commissioner erred in convicting the appellant on the evidence of PWs
2, 3, and 5 who were clearly found to be accomplices by reason of their failure to report
the incident to the police;
(b) PW2 had been detained at the police for five days pending the apprehension of the
appellant; he was clearly a person with a possible interest of his own to serve whose
evidence should not have been relied upon;
(c) The trial commissioner misdirected himself by finding and holding that the
appellant was responsible for the deceased's death when evidence showed that the
deceased had no money to pay for his fare and therefore a possibility existed that he
jumped into the water to swim to the shore to avoid payment of the fare and
(d) The trial commissioner misdirected himself in finding that the prosecution had
established malice aforethought when evidence revealed that the deceased was unknown
to the appellant and boarded the boat on his own.

8
At the outset we would like to indicate that we have no difficulty in holding that PW2
was a person with a possible interest of his own to save for the simple reason that he had
been detained in connection with the same incident and did not earlier on report the
incident to the police. His evidence therefore required corroboration. PW3 also did not
report the incident to the police. When reviewing this witness's evidence the trial
commissioner had this to say,

But when further cross examined this witness, PW3, said he did not see the actual
pushing of the deceased by the accused. But that since deceased was very close to
accused he asumed it was accused who threw deceased into water. He denied that
deceased jumped into the water on his own. The witness changed his stance again and
said he did see accused push the dead man into the water. He pushed him by the chest.
PW3 denied that he was dozing but was looking around and saw what was happening
and that it was not dark. It was so clear that one was able even to see the colours of shirts
and other garments passengers were wearing, the witness said".

A careful examination of PW3's evidence on record as taken down by court does not
support the above passage as set out in the judgment. Further in his judgment the trial
commissioner had this to say;

"PW3 Frank Mwape is a relative of the accused. He, like PW2, also stated that he
saw accused push the deceased into the lake after deceased failed to pay the K10.00 fare
from Kashilu to Isokwe Island. There were no discrepancies in his evidence and he
testified in a cool manner and remained unshaken under cross examination".

Further on the same page the learned trial commissioner said; "PW3, like PW2
could be said to be witnesses with a possible interest of his own to save. The interest
being to exonerate himself from suspicion that he took part in drowning the deceased or
that he was the sole culprit. That suspicion, if it ever existed at all, has been removed by
the evidence of PWs 2 and 5 which I accept as truthful. In turn this evidence of PW3
exonerates PWs 2 and 5. This PW3's evidence is not suspect or manifestly unreliable. I
accept it to be true and I rely on it.”

We have great difficulty in following what was going on in the mind of the trial
commissioner as regards PW3's evidence. But from the record we can safely, but without
disrespect, say that there was some confusion. In our view, for the reason already stated,
namely, failure to report the incident, PW3 was a witness with an interest of his own to
save. His evidence also required corroboration. And if we accept, which we are inclined
to do, that he was discredited in cross examination, then his evidence becomes unreliable.

PW5, the wife of PW2, also did not report the incident. When cross examined she
had this to say,

"I was not happy to see my husband locked up for the death of the deceased
because he had no hand to play".

9
This is the witness who was said to have contradicted her statement to the police. We
have no difficult in holding her a biased witness. Her evidence also required
corroboration. According to the trial commissioner these witnesses corroborated each
other.

We do not propose to define what constitutes corroboration in great detail but the words
of Lord Reading, C. J., in the classic case of R v Baskervill (3), at page 667 are very
instructive. He said:

"We hold that evidence in corroboration must be independent testimony which

affects the accused by connecting or tending to connect him with the crime. In other
words, it may be evidence which implicates him, that is, which confirms in some material
particular not only the evidence that the crime has been committed but also that the
prisoner committed it"

In Shamwana & Others vs The People (4) we said at page 127,

"Corroboration or supporting evidence is a requirement that seeks to guard against

the danger of deliberate false implication by singly or jointly fabricating story against the
accused. In Phiri (E) and Others (81). A less technical approach to what is corroboration
as a matter of law, was recognised. We indicated there, at page 107, lines 14 to 18, that it
was enough to adduce evidence of "something more" namely circumstances which
though not constituting corroboration as a matter of strict law, yet satisfy the court that
the accused is being falsely implicated has been excluded and that it is safe to rely on the
evidence of the accomplice implicating the accused. As the learned authors of Phipson
have indicated in paragraph 320 - 17: "The whole point of looking for corroboration of
'suspect' evidence is to see whether it is to be believed."

In the same Shamwana case this court held, among others, that,

"In some cases, accomplices of a class may be mutually corroborative where they
give independent evidence of separate incidents and where the circumstances are such as
to exclude the danger of a jointly fabricated story."

From the authorities cited above we are satisfied that PWs 2, 3 and 5 do not fall in a class
of accomplices who may be mutually corroborative because they do not give independent
evidence of separate incidents. The danger of a jointly fabricated story in this case has
not been excluded. We find no independent evidence on record corroborating the
evidence of PWs 2, 3 and 5. On their evidence we are unable to say the appellant pushed
the deceased into the lake and failed to rescue the deceased as alleged by these witnesses.
We find it unsafe to uphold this conviction; the conviction is quashed; the sentence is set
aside and the appellant stands acquitted.

Conviction quashed, Sentence set aside, Appellant acquitted.

10
BANDA v THE PEOPLE (1990 - 1992) Z.R. 70 (S.C.) 20

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.
15TH OCTOBER AND 19TH NOVEMBER, 1991
(S.C.Z. JUDGMENT NO. 8 OF 1991)

Flynote

Criminal procedure - Confession - Failure to administer warn and caution statement

creating rebuttable presumption of involuntariness.
Criminal procedure - Confession - Counsel informing Court that initial instructions were
that statement voluntary - Such precluding accused from receiving fair consideration of
challenge to admissibility of statement.

Headnote

During his trial on a murder charge a statement, in which he confessed to the offence,
was admitted in evidence against the appellant. There was a discrepancy between the
police officer who took down the statement and a civilian witness as to whether the
required warn and caution statement had actually been administered. In admitting the
statement the trial Court had relied heavily on a statement from the bar by the appellant's
counsel during the trial that his initial instructions had been that the statement was free
and voluntary. On appeal the Court held that the failure to administer the warn and
caution created a rebuttable presumption of involuntariness and, as there was a
discrepancy between the prosecution witnesses as to whether this had happened, it had
not been rebutted. It was further held that the statement should be excluded as the stance
taken by the appellant's counsel at the trial had amounted to actual prejudice to the
appellant. The appellant's challenge to the admission of the statement could not have
received fair consideration when defending counsel made damaging statements, contrary
to his duty to the client. The statement was excluded but, as there was sufficient other
evidence to convict the appellant, the appeal was dismissed.

p71

Cases referred to:

(1) Shamwana and Others v The People (1985) Z.R .41.
(2) The People v John Nguni (1977) Z.R. 376.

For the appellant: S.K. Munthali, Senior Legal Aid Counsel.

For the respondent: K. Lwali, Assistant Senior State Advocate.

Judgment

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

11
The appellant was convicted of the murder of Lamiwe Banda and sentenced to capital
punishment. The particulars alleged that on 18th October, 1989, at Chingola Village in
Chief Kawaza's area in Katete District, he murdered the deceased. The prosecution case
established that the deceased died from traumatic perforation of her private parts and
rectum and the allegation was that it was the appellant who inflicted the fatal injuries by
violent insertion of a knobkerrie. There was evidence from a number of witnesses that
the deceased told them it was Chisoni who had assaulted her and injured her very badly
including in the private parts. In particular, PW5 testified that on the fateful day, the
deceased had passed by her house and told her she was going to have some beer. A short
while later, the deceased came and fell in her yard and told PW5 that Chisoni had
assaulted her and injured her with a knobkerrie. PW1 was one of those summoned and
the deceased told him too that it was Chisoni who had injured her after she had rejected
his sexual advances. There was evidence also from PW2 who together with PW3
apprehended Chisoni, the appellant, that twice the appellant escaped and ran away from
them but was recaptured. PW2 testified that the appellant admitted that he had killed the
deceased and gave the reason that she had refused to have sexual intercourse with him.
There was, in addition, a full confession recorded by PW7, a police officer, and witnessed
by PW6, a civilian, who happened to be at the police station to report another matter
altogether. The warn and caution statement was admitted at first without any objection
but when allegations of assaults and inducements were made during the defence case, the
learned trial judge correctly held a belated trial within the trial and still ruled in favour of
admitting the statement. In the course of dealing with the warn and caution statement, the
learned counsel then acting for the appellant disclosed to the Court that he was surprised
by the allegation of involuntariness being raised by the accused since his earlier
instructions were that it was a free and voluntary statement and counsel gave as his
opinion that the confession was voluntary. The learned trial judge in his judgment
explicitly relied quite heavily on defending counsel's statements from the Bar as
fortifying his finding on the question of voluntariness an consequent admissibility of the
statement.

The first ground of appeal attacked the finding that the warn and caution statement was
voluntary while the second ground attacked the admission of the same statement on the
basis of unfortunate remarks from the Bar by the defending counsel. In relation to the
first limb, Mr Munthali relied on the evidence of PW5 who testified that he did not hear
any warn and caution actually being administered and that at first the appellant was
reluctant to speak and only did so when PW7 persisted. The objection raised by the
defence was based on alleged assaults and these

p72

were discounted after the learned trial judge found on an issue of credibility that PWs 6
and 7 were to be believed. We can find nothing wrong with that determination. However,
the complaint concerning the absence of any actual administration of the warn and
caution, although it was written at the top of of the statement, was well taken having
regard to the evidence of PW6. In terms of Shamwana and Others v The People [1] the
failure to administer a warn and caution raises a rebuttable presumption of

12
involuntariness and unfairness and it is for the prosecution to advance an explanation
acceptable to the Court for the breach of the relevant judge's rule if the Court is to
exercise its discretion in favour of admission. No explanation is available in this case
where PW7 took the position that he had administered a warn and caution while PW6
contradicted this. There is yet another reason why we should uphold Mr Munthali's
objection to the warn and caution statement. This relates to the second ground of appeal
which attacked heavy reliance placed by the learned trial judge on the defence counsel's
damaging statements from the Bar. In note 11 of para.1137 of Halsbury's, 4th ed., vol. 3,
the learned authors suggest that where a confession of guilt is made to counsel before
trial, he could decline to take up the defence of the case; where a confession made to him
during trial does not debar him from testing the prosecution case to the fault and setting
up available defences so long as he does not set up an affirmative case inconsistent with
the confession. The discussion at para. 1195 of the same volume of Halsbury's underlines
the duty of non-disclosure by counsel of information confided in him by his client which
counsel is not entitled to communicate to anyone else if it would be to the detriment of
his client. We agree with these observations. In this case, the stance taken by defending
counsel, hostile as it was to the accused's interests, not only put the appellant in a fix, as
the saying goes, but also resulted in actual prejudice when the learned trial judge
expressed satisfaction that, because his own lawyer had said so, the confession statement
recorded by PW7 must have been free and voluntary and the objections raised by the
appellant had to be dismissed. We do not see how the appellant's challenge to the
admission of his warn and caution statement can be said to have received fair
consideration when defending counsel made damaging statements, contrary to his duties
to the client. The grounds in this respect are upheld and the statement recorded by PW7
will be disregarded for the purposes of this judgment.

Mr Munthali sought to argue that the learned trial judge did not rely on any other
evidence and that we should not consider such other evidence. On the contrary, as Mr
Lwali pointed out, there was other evidence which the learned trial judge accepted. This
consisted of the statements made by the deceased to PWs 1 and 5 and the confession
made to PW2, a civilian who had apprehended the appellant and against whom there was
no suggestion of any impropriety. In relation to PW5, to whom the deceased made a
report immediately after the indicent, and PW1, who was told the same things later that
day, Mr Lwali submitted that their evidence was admissible as res gestae on the grounds
which were fully discussed by Cullinan, J., as he then was, in The People v John Ng'uni
[2]. He submitted that there was no possibility in this case that at the time when the
deceased spoke to the witnesses she could have distorted the

p73

account or concocted a story. We respectfully agree with the decision in Ng'uni that
evidence of a statement made by a person who is not called as a witness (in this case the
deceased) may be admitted as part of the res gestae and can be treated as an exception to
the hearsay rule provided it was made in such conditions of involvement or pressure as to
exclude the possibility of concoction or distortion to the advantage of the maker or to the
disadvantage of the accused. The tests discussed in Ng'uni were fully met here and the

13
evidence of what the deceased said was properly admitted. It is not correct, as Mr
Munthali suggested, that the accused in Ng'uni was acquitted on the rejection of this type
of evidence; he was acquitted because the eyewitnesses who purported to repeat what the
deceased said were themselves not credible and appeared anxious to conceal the presence
of and the roles played by some members of their family whom the accused had
implicated. In the case at hand, no such adverse finding on credibility was made or could
be made against PWs 1 and 5. What is more, there was nothing else in Ng'uni to support
the evidence of the suspect witnesses as to the words allegedly uttered by the deceased
there implicating the accused, while in this case there was the evidence of PW2 to whom
this appellant confessed.

We are satisfied that even had the learned trial judge excluded the warn and caution
statement recorded by PW7, he must have convicted in any event on the remainder of the
evidence.

The appeal is dismissed. We have nothing to comment on the mandatory sentence.

Appeal dismissed.

14
IVOR NDAKALA v THE PEOPLE (1980) Z.R. 180 (H.C.)

HIGH COURT
CULLINAN, J.
25TH JANUARY, 1980
HPA/4/1980

Flynote

Evidence - Corroboration - Uncorroborated evidence of accused against co-accused -

Need for warning before conviction
Evidence - Admissibility- Accused's evidence against co-accused - When admissible
Evidence - Confession - Procedure before introduction into evidence

Headnote

The appellant and a co-accused were convicted of attempted store breaking. They were
found by the police, seated on an iron bar, near the store, in the early hours of the
morning. According to the respondent, policeman, the lock of the store had disappeared
and the two accused had confessed to attempted store breaking, but according to the two,
they were on their way to the city when they were apprehended by armed plain clothes
policemen.

It was pointed out, during the appeal, that the evidence of the police officer and
complainant were conflicting as to whether or not the lock on that store had been
removed, neither were the appellant and the co-accused found breaking into the premises.
Further the magistrate had permitted evidence of confessions of the two accused without
their consent.

Held:

(i) When an accused person gives evidence against his co-accused it is desirable
that the court should, where such evidence is uncorroborated, warn itself of the
danger of convicting thereon.
(ii) When an accused makes an extra-judicial statement in the absence of a co-
accused, it cannot be regarded as evidence against the latter accused; but when
the accused goes into the

1980 ZR p181
CULLINAN, J.

witness box at the trial and gives evidence which incriminates his co-accused, that
evidence is admissible against the latter accused, and it may be regarded as evidence for
the prosecution against him.
(iii) Evidence of confessions of an accused person or co-accused cannot be introduced
in court without their consent.

15
Cases cited:
(1) Njovu v The People HPA/42/73 (Unreported).
(2) R. v Russel Cr. App. R. 52.
(3) R. v Prater (1966) 44 Cr. App. R. 83 [1960] 2 Q.B. 464.
(4) Chisokola v The People ( 197 3) Z.R. 46.

For the appellant: P. Mwikisa, Esq., Legal Aid Counsel.

For the respondent: F. Bruce - Lyle, Esq., State Advocate.
__________________________________
Judgment

CULLINAN,J.:

The appellant and a co-accused were convicted of attempted store-breaking. The learned
State Advocate, Mr Bruce - Lyle, has indicated that the State does not support the
conviction. It was the evidence of a police officer that he and other police officers, who
did not give evidence, heard noise coming from a store in the early hours of the morning
and on investigation found that the lock on the door of the store had disappeared. The
police approached the scene and found the appellant and his co-accused seated nearby,
each of them sitting on an iron bar. The appellant's co-accused possessed a candle and
matches in his pocket. The police officer testified that the appellant and his co-accused
confessed to attempted store-breaking. The appellant and his co-accused in their sworn
evidence testified that they were on their way into the city early in the morning, where
the co-accused was employed as a shoe cleaner. When passing by the store they were
apprehended by armed plain-clothes policemen, who accused them of having attempted
to break open the store, and subsequently produced iron bars. The learned trial magistrate
accepted the evidence of the Police officer. In assessing the evidence of the appellant and
his co-accused, he observed:

"They are accomplices. I must warn myself that the evidence of an accomplice to
support the other requires corroboration and indeed here the testimony may be complied
with by the court but this is in the discretion of the court.''

The trial magistrate was no doubt there referring to the general rule that fellow
accomplices (in the one transaction) cannot corroborate each other. A co-accused may
well have been an accomplice in the actual commission of the crime, but different
considerations arise upon trial. When an accused makes an extra-judicial statement, in the
absence of co-accused, it cannot be regarded as evidence against the latter accused; when
however an accused goes into the witness box at the trial and gives

1980 ZR p182
CULLINAN, J.:

evidence which incriminates his co-accused, that evidence is of course admissible against
the latter accused: indeed it may well be regarded as evidence for the prosecution against

16
him. Nonetheless, there is no rule of law as such that a co-accused in such circumstances
is to be treated as an accomplice, whose evidence requires corroboration. This aspect was
considered by the court in the case of Njovu v The People (1) where the following
passage from the judgment of the Court of Appeal (Criminal Division) per Diplock, L.J.,
in the case of R.v Russell (2) at pp. 149/150 was quoted:

"but it is said that there is a rule of law or a rule of practice that the jury must be
warned in terms of the need for corroborative evidence. In the view of this Court, where a
co-defendant gives evidence there is no rule of law to that effect. The correct position is
set out in the case of Prater (3), in which this Court (at p. 86 and 466 of the respective
reports) said: "It is desirable . . ." - and I emphasise the word "desirable" - ". . . in cases
where a person may be regarded as having some purpose of his own to serve, the warning
against uncorroborated evidence should be given."

When an accused gives evidence against his co-accused it is desirable that the court
should, where such evidence is uncorroborated, warn itself of the danger of convicting
thereon. In the present case, however, neither the appellant nor his co-accused gave
evidence incriminating the other: indeed their evidence was mutually supporting. To say
that their evidence required corroboration was then a misdirection.

Further, the learned State Advocate Mr Bruce - Lyle has pointed out that the evidence of
the Police officer and indeed the complainant was conflicting as to whether or not the
lock on the particular door had been removed. He submits also that in view of the fact
that the appellant and his co-accused were not found breaking into the premises, it was a
dereliction of duty on the part of the police not to have finger-printed the door surfaces. I
agree with this submission. Again, the Police officer was allowed to introduce evidence
of confessions made by both the appellant and his co-accused without the trial magistrate
ever having asked the unrepresented appellant and his co-accused as to whether they had
any objections to the introduction of such confessions. Indeed, the Police officer was
allowed to give verbal evidence of such confessions without producing written statements
recorded on the appropriate Police form; see Chisokola v The People (4).

The issue was one of credibility. I am not satisfied that had the learned trial magistrate
directed his mind to the above aspects that he would inevitably have convicted the
appellant. The appeal is allowed. The finding and sentence of the court below are set
aside and the appellant is acquitted. In the exercise of my revisionary jurisdiction I also
set aside the finding and sentence in respect of the appellant's co-accused, namely Cassim
Sakala who is accordingly acquitted.

Delivered in Open Court at Lusaka this 25th day of January, 1980

17
HAPPY MBEWE v THE PEOPLE (1983) Z.R. 59 (H.C.)

HIGH COURT
SAKALA, J.
14TH JULY, 1983
(HPA/39/83)

Flynote

Evidence - Witnesses - Witness present in court throughout proceedings - Admissibility

of testimony.
Evidence - Witnesses - Witness present in court throughout proceedings - Weight of
testimony.
Evidence - Witnesses - Witness present in court throughout proceedings - Effect of
excluding testimony.

Headnote

The appellant was charged with inflicting grievous bodily harm. At the close of the
prosecution case, he, was put on his defence. He called one witness who had been present
in court throughout the trial. In the interests of justice, the court disallowed his testimony
and convicted the appellant, sentencing him to fifteen months imprisonment with hard
labour. He appealed against both conviction and sentence.

Held:

(i) There is no rule of law that witnesses must remain outside until called to give
evidence; and indeed if a judge in his discretion, so rules, he cannot refuse to
hear the testimony of a witness who has remained in court throughout.
(ii) The evidence is admissible, but the court in considering the evidence at the end
of the trial, will have to determine what weight to attach to that evidence.
(iii) It is a serious misdirection, prejudicial to the appellant and fatal to the
prosecution case to disallow the witnesses evidence.

Cases cited:
(1) Moore Lambeth County Court Registrar [1969] 1 W.L.R. 141.

For the appellant: S. Tembo and Co.

For the respondent: N. Sivakumaran, State Advocate.
__________________________________________
Judgment

SAKALA, J.:

18
The appellant was convicted of grievous harm by the Subordinate Court of the Lundazi
District. He was sentenced to 15 months imprisonment with hard labour. He has appealed
to this court against both conviction and sentence.

The circumstances leading to this case are that on 14th August, 1982, the complainant, in
a group of others as well as the appellant with his group were at a beer party. At the end
of the beer drinking session, the complainant left the scene with his friends. As they
proceeded going to their homes the appellant also on his way home followed, his friends
too. According to the case for the prosecution, when the appellant was caught up with the
group of the complainant, he began uttering insults generally.

p60

As a result one of the complainant's friends rebuked the appellant, who later got annoyed.
Thereafter, a fight between the complainant and one of the colleagues of the appellant
erupted. It appears from evidence that in the end, this fight turned into a free for all
resulting in the complainant sustaining the injuries complained of.

The case for the prosecution was that, the fight was started by the appellant. According to
the evidence of the arresting officer in cross-examination, the appellant reported himself
to the police station carrying a knife which he said belonged to the complainant. The
prosecution witnesses at the scene, the friends of the complainant, all denied in cross-
examination of seeing the complainant with a knife.

At the close of the prosecution case, the appellant was put on his defence. After his rights
were explained, he elected to give unsworn statement but told the court that he had one
witness who had been in court throughout the trial. The appellant's intended witness
admitted to having been in court throughout the trial. The court then made the following
order:

"Accused witness who has been listening to all that was happening, in the interest
of justice will not give his evidence."

In my opinion, this was a serious misdirection on the part of the learned trial magistrate.
In practice, witnesses remain out of court until called to give their evidence, so that each
witness may be examined out of the hearing of the other witnesses on the same side who
are to be examined after him. In Moore v Registrar of Lambeth County, Court (1) at page
142
Edmund Davies, L.J. said:

"No rule of law requires that in a trial, the witnesses to be called by one side must
all remain out of court until their turn to give testimony arises. This is purely a matter
within the discretion of the court. . . Indeed, If the court rules that witnesses should be out
of court and a witness nevertheless remains in court . . . the judge has no right to refuse to
hear (his) evidence."

19
I entirely agree with this statement but I would add further that where a situation arises in
which a witness to be examined heard the evidence of the other witnesses, his evidence is
still admissible but the court, in considering in evidence at the end of the trial will have to
determine as to what weight to attach to that evidence.

Turning to the instant case, a perusal of the record reveals that the appellant's position
was that he acted in self-defence. In his unsworn statement, he said:

"I started off alone. I caught up with the complainant with his friends. As they
talked to me James Phiri insulted my mother. The complainant hit me on my left cheek
and I fell down. Then Peter Mumba came. He asked why I was being attacked. This Peter
Mumba is the same man who has bean disallowed to give evidence. The complainant also
attacked him. After attacking Mumba he came to beat me again and I fell down.

p61

The complainant then produced a knife. I held him by the hand which had the
knife, twisted it and pulled him towards me. I tripped and hit him on the mouth and he
fell down. I then snatched the knife from him."

It is quite clear that the issue in the matter was one of credibility. The learned trial
magistrate believed the prosecution story. Yet, it is also the prosecution case that the
appellant who reported himself to the police brought with him a knife said to belong to
the complainant. Peter Mumba, the appellant`s intended witness was refused to give
evidence by the court on the ground that he had heard the prosecution witnesses. This as
I have said was a serious misdirection which in my view prejudiced the case for the
appellant and fatal to the prosecution case. The issue having been one of credibility, I
cannot say that had the appellant's witness given evidence, the learned trial magistrate
would still have come to the same conclusion. In these circumstances, I find it unsafe to
allow this conviction to stand. I thus quash the conviction and set aside the sentence. The
appellant stands acquitted.

Appeal allowed

20
LUSAKA WEST DEVELOPMENT COMPANY LIMITED, B.S. K. CHITI
(RECEIVER), ZAMBIA STATE INSURANCE CORPORATION v TURNKEY
PROPERTIES LIMITED (1990) S.J. (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER, A.J.S. AND SAKALA, J,
5TH JUNE, 1990
S.C.Z. JUDGMENT NO. 1 OF 1990

Flynote

Appeal - Consent Judgment - Withdrawal of Consent - Production of “without prejudice”

letters in court as evidence

Headnote

The appellants and respondent entered into a consent judgment after protracted
correspondence, some of which was marked “without prejudice”, between both sides.
Finally, the advocates of both sides reached an agreement which was embodied in a
consent summons for an order to be made by consent for the payment of a sum of money
in full and final settlement of the cause of action between the parties. Contemporaneously
with the entering by the parties into the consent agreement referred to or just prior to the
formalisation of such an order, the advocates for the third appellant repented of the
agreement and sought to withdraw their consent. The learned trial judge refused to
entertain the withdrawal of consent given by the third appellant to the said judgment. On
appeal,

Held:

(i) A consent agreement reached in circumstances such as in this case could

possibly only have been allowed to be withdrawn if there were proper grounds
upon which validity of any contract could be impugned, such as fraud or
mistake

Cases referred to:

(1) Rush and Tompkins Ltd v Greater London Council and Another (1989) AC 993
1305 (Part 12 December 1989) at p 1280

For the third appellant: Mr M. M. Mundashi, Z.S.I.C.

For the respondent: Mr A. M. Hamir, Solly Patel, Hamir and Lawrence
_______
Judgment

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

21
This is an appeal against a High Court ruling in which a consent order had been made and
in which the learned trial judge refused to entertain the withdrawal of consent given by
the appellant to the said judgment. For the record, it should be noted that the only
appellant with substantial interest in this case and who has been represented is the third
appellant, although the consent order related to the second appellant as well. It was not in
dispute that, during an adjournment of the trial of the action in which the order was made
for the express purpose of attempting a settlement out of court, the advocates for both
sides held discussions and exchanged correspondence some of which was marked
"without prejudice". Finally the advocates reached an agreement which was embodied in
a consent summons for an order to be made by consent for the payment of a sum of
money in full and final settlement of the couse of action between the parties.

Contemporaneously with the entering by the parties into the consent agreement referred
to or just prior to the formalisation of such an order, the advocates for the third appellant
repented of the agreement and sought to withdraw their consent.

One issue in this appeal concerns the production to the court of "without Prejudice"
letters to show that a consent order had been agreed. Mr Mundashi has argued that, as a
general rule, such correspondence ought not to be admitted in evidence. We agree and
indeed, if we understood him correctly, so does Mr Hamir. As a general rule, therefore,
without prejudice communication or correspondence is inadmissible on grounds of public
policy to protect genuine negotiations between the parties with a view to reaching a
settlement out of court. In this regard we cite the case of Rush and Tompkins Ltd v
Greater London Council and Another (1). However, that is only a general rule and, as Mr
Hamir has correctly pointed out, basing his submissions on paragraph 213 of Halsbury's
Laws of England, 4th Edition, Volume 17, there may be situations - such as in the case of
a settlement - where the issue for determination demands the production for such without
prejudice correspondence. However, it is quite clear that the issue here did not really call
for the disclosure of the correspondence complained of since it was capable of being
resolved without recourse to such correspondence, the starting point being the consent
summons signed by both sides and which document epitomised the agreement reached
out of the court. That disposes of the ground concerning the use of without prejudice
correspondence which, to summarise, we find it was unnecessary to refer to in this case.

The main issue is whether counsel for the appellant could withdraw the consent of his
client when it has already been communicated to the other side and when it had already
been signified by their signature on the consent summons. We have listened to the
submissions from Mr Mundashi and it transpires that Counsel had, initially and right
down to the signing of consent agreement, full instructions and authority from the
appellant concerned. Although, quite clearly, the authority of counsel conducting
liigation cannot be regarded as limitless when it comes to negotiating a compromise or a
settlement and although counsel would in the ordinary course, take instructions from the
client, we are satisfied that in this case counsel did have the authority of the Managing
Director of the third appellant who equally had ostensible authority on behalf of the third
appellant to give instructions to counsel. In turn counsel had ostensible authority to enter
into the consent agreement in so far as his dealings affected the litigation with the other

22
side. A consent agreement reached in circumstances such as in this case could possibly
only have been allowed to be withdrawn if there were proper grouns upon which validity
of any contract could be impugned, such as fraud or mistake. No such factors existed in
this case and the whole of the third appellant's argument hinged on some internal
regulations of the third appellant which set out limits of financial expenditure which can
be committed on the authority of the various officers or authorities in the organisation.
Such internal document which was never brought to the attention of the other side can, of
course, not affect the validity of the dealings entered into by counsel acting with
ostensible authority. In fairness, it should be noted for the record that Mr Mundashi was
unable to maintain the proposition that counsel, in this case, had no ostensible authority
to settle the matter with the consent and on the instructions of the Managing Director who
equally had his own ostensible authority. That being the case, it is so clear that the
appeal, to the extent that it was designed to set aside the judgment entered below, cannot
be entertained.

The appeal is dismissed and the costs will follow this event.
Appeal dismissed

23
EAGLE CHARALAMBOUS TRANSPORT LIMITED v GIDEON PHIRI (1994)
S.J. 52 (S.C.)

SUPREME COURT
CHAILA, CHIRWA AND MUZYAMBA,JJ.S.
9TH MARCH AND 9TH JUNE 1994
S.C.Z. JUDGMENT NO. 8 OF 1994
APPEAL NO. 63 OF 1993

Flynote

Damages - Negligence - Res Ipsi Loquitor - Whether doctrine may be pleaded where the
plainntiff knows the particulars of the negligence- Volenti non injuria - When is it applied

Headnote

The plaintiff (respondent) and DW2, one Ellington Simbeye who were both employed by
the defendant as lorry mate and driver respectively, left Mufulira to deliver Copper
cathodes, laden in the defendant’s (appellant) Mercedes Benz truck and trailer
registration number Ev 8030, to Tazara Deport at Kapiri Mposhi. On the way, at Kashitu
near the destination, a tyre burst and the truck overturned and the plaintiff sustained
severe injuries in his left leg and arm. The plainntiff claimed and was granted damages by
the High Court where it was found that the defendant had been negligent. The defendant
appealed.

Held:

(i) If a plaintiff knows the cause or alleges particulars of negligence it is

inappropriate for him to plead res ipsa loquitur as well.
(ii) The accident was caused wholly by the defendant company’s negligence
through its agent and/or servant
(iii) The doctrine of volenti non injuria applied to the respondent because he
voluntarily and freely accepted the risk of travelling on a truck with worn tyres.

Authorities referred to:

1. Clerk and Lindsell on Torts, 14th Edition
2. Markway v South Wales Transport Company Limited (1950) 1 All E.R 392
3. Attorney General v Marcus Kampumba Achiume (1983) Z.R. 1

For the appellant: B.C Mutale, Ellis and Company

For the respondent: A.M Mushingwa, Mwanawasa and Company
________________________________________
Judgement

MUZYAMBA, J.S.: delivered the judgement of the court.

24
This is an appeal against an award of damages for personal injuries sustained by the
respondent in a road traffic accident which occurred on 7th October, 1988 at Kashitu,
along great North Road , near Kapiri Mposhi due to alleged negligence on the part of the
appellant’s agent and/or servant.

For convenience we will refer to the respondent as plaintiff and the appellant as
defendant which is what they were in the court below.

The facts of this case are that on 7th October 1988 the plaintiff and DW2, Ellington
Simbeye who were both employed by the defendant as lorry mate and driver respectively,
left Mufulira to deliver Copper cathodes, laden in the defendant’s Mercedes Benz truck
and trailer registration number Ev 8030, to Tazara Deport at Kapiri Mposhi. On the way,
at Kashitu near the destination, a tyre burst and the truck overturned and the plaintiff
sustained severe injuries in his left leg and arm.

It was pleaded in the statement of claim and evidence was led at the trial and support of
the allegation that the front left wheel tyre of the truck was worn out and that the accident
happened due to excessive speed and bursting of that tyre.

The defendant’s evidence pointed in the opposite direction. Both Dw1 Mr Erik Hans
Pablanolles, the defendant’s technical services manager and DW2, the driver testified that
they inspected the tyres before the truck left Mufulira and were in good condition. In
addition, DW1 said he went to the scene of the accident and inspected the truck and
found that the front right and not the front left wheel tyre had burst. And DW2, said he
was not over speeding. He was doing between 30 and 45 kg per hour and not 120 per
hour as alleged by the plaintiff. That the accident happened at night, around 20.30 hours.

Mr Mutale advanced two grounds of appeal. First that the learned trial commissioner
misdirected himself in law in relying on the evidence of the plaintiff as it was full of
fabrications and was grossly exaggerated and second, that the learned trial commissioner
misdirected himself in holding that the defendant’s negligence was proved by the mere
fact of the burst tyre.

On the first ground, Mr Mutale submitted that the plaintiff’s evidence was fabricated,
exaggerated and full of flaws and that it was totally contracted by the defendant’s
evidence. That the learned commissioner was biased in favour of the plaintiff and as
such failed to evaluate all the evidence before him and to resolve the contradiction
between the two sides. He pointed out that whereas the plaintiff testified that the front
left wheel tyre burst DW1 said it was the front right wheel tyre which burst and that
whereas the plaintiff said the tyres were worn out DW1 and 2 said they were in good
condition. That whereas the plaintiff said DW2 was doing 1`20 km per hour DW2 said
he was doing between 30 - 45 km per hour. He further pointed out that in his evidence
the plaintiff said the truck overturned on his side and was trapped and that he sustained a
broken left leg and arm. That in that condition and being at night it was not possible for
the plaintiff to see which tyre had burst. He concluded by saying that had the learned
trial commissioner balanced all the evidence before him he could have come to a

25
different conclusion and urged the court to interfere with the findings of fact and cited the
case of ACHIUME (3) in support.

On the second ground Mr Mutale submitted that the learned trial commissioner was
wrong to have concluded that negligence was established by the mere fact

p53

of the bursting of the tyre. That this was a dangerous proposition because, although it
could be prima facie evidence of negligence, yet a driver might offer an explanation of
what caused the tyre to burst. He further submitted, in the alternative, that on the
plaintiff’s evidence, this was a proper case for the application of the doctrine of volenti
non fit injuria because the plaintiff knew from the start that the tyre was worn out and
yet he voluntarily and knowingly assumed the risk by travelling on a truck with defective
tyres.

In response to these submissions Mr Mushingwa submitted that the learned trial

commissioner did not err in any way. that the learned commissioner analysed all the
evidence before him and in his judgement addressed his mind to the nature of the tyres,
the condition of the road and truck and the circumstances under which the accident
happened. He further submitted that it was the duty of the defendant to explain the cause
of the bursting of the tyre and that since the defendant offered no explanation the learned
commissioner was right in concluding that negligence had been proved by the mere fact
of the tyre burst and he referred the court to the House of Lords decision in the case of
Barkway v Southwales Transport Company Ltd (2).

We have carefully considered the submissions by both counsel and the evidence on
record and the pleadings. The plaintiff, in addition to alleging negligence pleaded in pars
5 of the statement of claim the doctrine of res ip loquitur in this manner:

“The plaintiff will also rely on the doctrine of res ipsa loqutur.”

In considering the doctrine the learned trial commissioner referred to CLARKE AND
LINDSELL ON TORTS (1) at par. 975 where it is stated, inter alia, that where the thing
is shown to be under the management of the defendant or his servants, and the accident is
such as in the ordinary course of things does not happen if those who have the
management use proper care, it affords responsible evidence in the absence of
explanation by the defendants, that the accident arose from want of care. He then came
to the conclusion, after satisfying himself that the defendant had failed to explain what
causes the tyre to burst, that the defendant was negligent. He said at page 6 and we
quote:

“The fact that the tyre burst and the motor vehicle overturned for no apparent reason in
prima facie evidence that the driver was negligent and the defendant has failed to refute
that evidence.

26
The doctrine of res ipse loquitur is no more than a rule of evidence effecting the burden
of profit. It is a confession by the plaintiff that he has no affirmative evidence of
negligence and a statement that an event which has occurred which in the ordinary course
of things is more likely than not to have.............. by negligence is but itself evidence of
negligence and the duty is on the defendant to disapprove that. We have to decide
therefore whether or not it is appropriate for a plaintiff to assert and give particulars of
negligence and at the same time, or in the alternative, rely on the doctrine.

The facts in Barkway v Southwales Transport Company Ltd (2) referred to by Mr

Mushingwa were that the appellant’s husband was killed while travelling as a passenger
in the respondent’s omnibus when a tyre burst and the omnibus veered across the road
and fell over an embankment. The appellant claimed damages and relied on the doctrine
or res ipsa loquitur saying that omnibus which are properly serviced do not burst their
tyres without cause,

p54

nor do they leave the road along which they are being driven. The respondents called
evidence to prove that the bursting of the tyre not due to negligence but impact fracture
due to one or more heavy blows on the outside of the tyre leading to disintegration of the
inner parts over a period. It was however admitted, in cross examination, by the
respondent’s witnesses that a careful inspection of the tyres would have revealed the
disintegration of the tyre. Allowing the appeal and disregarding the doctrine of res ipsa
loquitur the House of Lords found that this amounted to negligence on the part of the
respondents. In the course of his judgement Lord Normand said, at page 399.

“The maxim res ipsa loquitur is no more than a rule of evidence affecting the onus . It is
based on common-sense and its purpose is to enable justice to be done when the facts
bearing on causation and on the care exercised by the defendant are at the outset
unknown to the plaintiff and or ought to be within the knowledge of the defendant.”

And the learned author of CLERK AND LINDSELL ON TORTS (1) at page 976 says:

“The doctrine applies (1) when the thing that inflicted the damage was under the sole
management and control of the defendant, or of someone for whom he is responsible or
whom he has a right to control (2) the occurrence is such that it would not have happened
without negligence. If these two conditions are satisfied it follows, on a balance of
probability, that the defendant, or the person for when he is responsible, must have been
negligent. There is, however, a further negative condition: (3) there must be no evidence
as to why or how the occurrence took place. If there is, then appeal to res ipsa loquitur is
in appropriate, for the question of the defendant’s negligence must be determined on that
evidence.”

It is quite clear from the above authorities that if a plaintiff knows the cause or alleges
particulars of negligence it is in appropriate for him to plead res ipsa loquitur as well. In
this case, since the plaintiff gave particulars of negligence it was in appropriate for him

27
to rely on the doctrine of res ipsa loquitur and try to shift the burden of proof to the
defendant. The burden lay on him throughout to establish the cause of the bursting of
tyre and should have done so by calling expert evidence. We would therefore agree with
Mr Mutale that the learned commissioner erred in law in finding that negligence was
proved by the mere fact of the bursting of the tyre. In our view such a finding would
have been sound in law had the plaintiff solely relied on the doctrine of res ipsa loquitur.

We will now consider Mr Mutale’s submission on findings of fact by the court below.

In the case of the Attorney General v Marcus Kampumba Achiume (3) referred to by Mr
Mutale, this court held, inter alia that an appeal court will not reverse findings of fact
made by a trial judge unless it is satisfied that the findings in question were either
perverse or made in the absence of the any relevant evidence or upon a misaprehension of
the facts or that they were findings which, on a proper views of the evidence, no trial
court acting correctly can reasonably make and that an unbalanced evaluation of the
evidence, where the only the flows of one side but not of the other are considered, is a

p55

misdirection which no trial court should reasonably make and entitles the appeal court to
interfere.

Mr Mutale’s arguments was that the trial commissioner failed to balance the evidence on
both sides and that his findings of fact were perverse. The evidence on record is that
truck was old and had a trailer. Both the truck and trailer were carrying 40 tonnes of
copper cathodes. At Kashitu near Kapiri Mposhi a tyre burst and the truck overturned on
the plaintiff’s side trapping him and breaking both his left leg and arm.. The accident
happened around 20.30 hours. According to the plaintiff the tyre which burst was the
front left wheel tyre and that at the time of the accident the truck was speeding, doing 120
km per hour. But according to DW1 and 2 respectively the tyre which burst was the front
right and that the truck was at the time doing between 30 - 45 km per hour. After reciting
the evidence this is what the learned commissioner said at page 54 and we quote:

“The defendant company has also not given any reason why if DW2 was driving at a
relatively safe and a slow speed of between 30- 45 km per hour , the motor vehicle should
have moved with so much force that after the tyre burst, it veered into the bush and
overturned.

Having carefully considered the issue I believe the plaintiff’s evidence on the point that
the tyre which burst was defective in that it was worn out and that the cause of bursting.
I further believe the plaintiff’s evidence that DW2 was driving an unreasonable high
speed, so that when the tyre burst, he could not and failed to control the motor vehicle
due to high speed, the result of which is that it overturned.

I am therefore satisfied the accident was caused wholly by the defendant company’s
negligence through its agent and/or servant in that.

28
(a) he drove a motor vehicle with a defective and worn out tyre which as a result
burst
(b) he drove the motor vehicle at unreasonably high speed and so failed to control it
and avoid the accident when the tyre burst, resulting in the motor vehicle overturning
thereby seriously injuring the plaintiff.”

It is quite clear from the quotation that the learned commissioner did not give a balanced
evaluation of the evidence before him. Neither did he resolve the contradiction between
the plaintiff and DW1 regarding which tyre burst. Was it the front left or front right. Nor
did he give reasons for preferring the plaintiff’s evidence and for disbelieving the
defence witness. We also failed to address his mind to various issues raised by the
evidence, namely whether or not an old truck pulling a trailer on both and both laden with
40 tonnes of copper cathodes, quite a heavy load, would speed, and whether the plaintiff,
who was so badly injured could be able to inspect the truck in the dark to see which tyre
had a burst. We are therefore satisfied that had the learned trial commissioner taken a
well balanced view of the whole evidence and addressed his mind to these issues he
would have come to a different conclusion. We would therefore reverse the findings of
fact below.

We will now consider the question whether on the facts of this case, as pleaded and
given by the plaintiff, the doctrine of volenti non fit injuria would apply. Par 4(b) of the
statement of Claim reads:

p56

“4 The said accident was caused wholly by the negligence of the defendant’s agent
and/or servant and also constructive negligence or the defendant.

PARTICULARS OF NEGLIGENCE

(b) Driving a defective motor vehicle in the tyres were worn out.”

And the plaintiff’s evidence on this issue is as follows:

Before we left I checked the truck we were to use. I observed that one of the front tyres,
left was worn out and one of the trailer tyres was also worn out. I brought this to the
attention of the driver that we would not carry copper cathodes on the truck. The driver
said that there was nothing he could do as he had reported the matter to the employers
and they did nothing about it. The driver’s name is Elliot Simbeye. The defendant
owned the truck and trailer. I also brought the same issue to the attention of the foreman
who complained that there were no spare tyres to be fitted to the motors vehicle. We
went to ZCCM Mufulira Divison and loaded the copper cathodes to deliver to Tazara at
Kapiri Mposhi.”.

29
On these facts Mr Mutale urged the court to apply the doctrine saying that the plaintiff,
knowing the danger posed assumed the risk by travelling on the truck with defective tyres
and heavily loaded.

The English authorities suggest that for the defence of volenti non fit injuria to be applied
upon by the defendant, it should be specifically pleaded and that it rarely applied in cases
of master and servant relationship because a servant should not be put in a position in
which he has to choose between obeying master’s orders or disobeying them and risk
loosing his job. We take a different view because unlike the maxim res ipsa loquitur
which is a rule of evidence and must be specifically pleaded, this doctrine is a rule of law
and must be applied whether or not specifically pleaded whenever any given facts
disclose such a defence and regardless of the relationship between the parties. We have
used the word 'regardless' because the risk posed may be fatal and therefore a matter of
life or death and not necessarily one, in case of a servant, choosing between obeying his
master’s orders or disobeying them and run the risk of dismissal.

In the par. 110 of Clerk and Lindsell on Torts (1) it is stated:

“whatever the terminology, voluntes must be free, and it is based on knowledge of the
risk in the plaintiff; if the defendants desire to succeed on the ground that the maxim
volenti non fit injuria is applicable they must obtain a finding of fact that the plaintiff
voluntarily and freely with full knowledge of the nature of the risk he ran impliedly
agreed to incur it.”

It is quite clear from this quotation that for the defence to succeed the defendant must
prove that the plaintiff was fully aware of the nature of the risk involved and that he
voluntarily and freely assumed that risk. Was the plaintiff aware of the nature of the risk
involved and did he voluntarily and freely accept it. The plaintiff said in evidence that he
complained to the driver and foreman that two

p57

tyres, one on the truck and the other on the trailer, were worn cut and that they would not
carry copper cathodes. He therefore must have foreseen an accident occurring and being
injured in the process, but nevertheless jumped on the truck. In so doing he voluntarily
and freely accepted the risk. He cannot now be heard to complain.

For the foregoing reasons the appeal is allowed and the award set aside.
Costs will follow the event and to be taxed in default of agreement.

Appealed allowed and award set aside.

30
MUWOWO v THE PEOPLE (1965) Z.R. 91 (C.A.)

COURT OF APPEAL
BLAGDEN, C.J., DENNISON AND CHARLES, JJ.
23RD JULY, 1965

Flynote and Headnote

[1] Criminal procedure - Appeal in general - finding of trial court that evidence
immaterial to its judgment - power of Court of Appeal to review:

Despite the trial judge's assertion that he would find the accused guilty without resort to
certain confessions by the accused, the Court of Appeal can, if it finds the statements
inadmissible, reverse the conviction on the basis that the trial judge might have reached a
different result had he not considered the confessions.

[2] Criminal procedure - Trial within a trial - when held - admissibility of

confessions:

If the accused objects to the admissibility of a statement or if it appears from the evidence
that the statement might have been involuntary, a trial within a trial must be held.

[3] Evidence - Burden of proof - confessions - prima facie case by prosecution -

caution of accused:

The prosecution initially discharges its burden of proof that a confession is 'voluntary' by
showing that prima facie the statement was made voluntarily and that it was made after a
caution.

[4] Evidence - Burden of proof - confessions - prosecution's burden at trial within a

trial defined:

At the trial within a trial to determine the voluntariness of a confession, the prosecution
must negative, beyond reasonable doubt, any form of inducement which might have
caused the accused to make the statement.

[5] Evidence - Burden of proof - confessions - voluntariness:

The prosecution must prove beyond reasonable doubt that a confession was made
voluntarily.

[6] Evidence - Confessions - inadmissible if involuntary:

Involuntary confessions cannot be admitted into evidence.

[7] Evidence - Confessions - procedure - trial within a trial - when held:

31
 See [6] above.

[8] Evidence - Confessions - series of confessions - necessity to introduce in

chronological order at trial within a trial:

At a trial within a trial, where the accused has made a series of statements, the
prosecution must introduce the statements in chronological order.

[9] Evidence - Confessions - series of confessions - necessity for prior inducement to

be removed from mind of accused:

When an inducement causes the accused to make a confession and the accused later
makes a second statement, the second statement is admissible only if the inducement
ceased to operate before the second statement was made.

p92

[10] Evidence - Confessions - voluntariness defined:

A 'voluntary' confession is one made in the exercise of a free choice to speak or to be

silent; it cannot be the product of violence, intimidation, persistent importunity or
sustained or undue insistence or pressure or any other method by the authorities that
overbears the will of the accused to remain silent.

[11] Evidence - Corroboration - of confession - conviction without corroboration is

unusual, although possible:

A man may be convicted on his confession alone, although it is usual to look for
corroborative evidence.

Cases cited:
(1) Mutambo v The People (Z.C.A. 24 1965).
(2) Sykes v R. (1913) 8 Cr. App. R. 233.
(3) R. v Lee (1950) 82 C.L.R. 133.
(4) Chalmers v H.M. Advocate (1954 S.L.T. (Notes) 26).
(5) R v Thompson [1893] 2 Q.B. 12.
(6) Mulonda v R. (N.RC.A.82/1964).
(7) Bater v Bater [1950] 2 All E.R. 458; [1951] P. 35; 94 S.J. 533.
(8) Mbopeleghe v R. 1960 R. & N. 508.
(9) Sawala v R. (F.S.C. Judgment No. 37/1961) (mimeograph).

For the appellant: Gardner.

For the respondent: Reilly, State Advocate.
____________________________________
Judgment

32
CHARLES, J.: The appellant was tried before the High Court at Ndola on a charge of
murder contrary to section 177 of the Penal Code (Cap. 6), in that on the 24th July, 1964,
at or near Chapaula Village, he murdered Samuel Chansa. He was convicted and
sentenced to death, and he has appealed against conviction. The appeal has been allowed
by setting aside the conviction and sentence and substituting for it a judgment of
acquittal. We now give our conclusions on the appeal and the reasons therefore.

The evidence upon which the prosecution relied was to the following effect. On the 24th
July, 1964, an armed police patrol under Inspector Smith went to Chapaula Village to
investigate a chasing away of a kapasu and two Boma Messengers from the village on the
previous day. The village was one which had been built, and was occupied, by members
of a religious sect known as the Lumpa Church and was in process of being surrounded
by a stockade. In the police party was Constable Samuel Chansa. As the police
approached the village they saw a man in the bush. He ran away and was chased, but he
escaped. At the spot where he was first seen were found weapons including a bicycle
chain on a stick. Inspector Smith and a constable - Nkata, by name - entered the stockade
in pursuit of a woman. In the village the inspector was stabbed in the back with a spear, a
cry of 'Jericho' was raised, and a number of villagers armed with spears and axes
immediately assembled whereupon the inspector and constable ran out of the village and
the armed villagers pursued them. The armed villagers, after leaving the village, divided
into two parties, one of which continued in pursuit of the inspector

p93

and came up with him, after he had fallen, and savagely attacked him, and the other party
proceeded to attack other members of the police party. The police party opened fire upon
the villagers when attacked, and eventually withdrew, leaving Inspector Smith's dead
body on the ground. Later that day a police party found the body of Constable Chansa
lying in the bush at a distance of six or seven hundred yards from the village. The body
had extensive wounds upon it. In the opinion of a medical witness the wounds were
caused by various kinds of spears, and death was due to an injury in the spinal cord of the
neck. Six witnesses identified the accused as amongst the villagers who chased the
inspector and the constable from the village, four of them deposing variously to him
having been armed with a spear and an axe and with a number of spears. The appellant
made four statements to the police, one of which was admitted without objection, another
of which was admitted after objection had been withdrawn, and the other two of which
were admitted after objection and trials within the trial. The first statement, a long
incriminating statement, was made on the 21st September, 1964. The second statement
was made on the same day after the appellant had been arrested and cautioned. It was:

" I admit that I was present at the crowd of those who killed Constable Chansa. I
struck him with an axe."

The third statement, which was not objected to, was made on the 23rd September, 1964,
when the appellant was charged and cautioned. It was really a reservation of making a

33
statement until he appeared in court. The fourth statement, which was the subject of the
withdrawn objection, was made on the 18th January, 1965, when the appellant was again
arrested, for a reason which does not appear in the record. It was:

" I deny the charge. I did not kill a person at all but I was present at the fight. We
were chasing policemen."

The accused in evidence stated that on the 24th July, 1964, he was in the bush cutting
poles for a house; that he heard shooting and then saw villagers running; that he returned
to the village and saw that a woman had been injured; that he then saw the police
throwing tear gas; that the police started to run and he thought the police wanted to shoot
the villagers; and that he had an axe, but no spears, with him at the time but he did not
use the axe upon anybody, and he did not go near any policeman lying on the ground. In
cross-examination the appellant admitted that when he first saw the police they were
outside the stockade, and running away, and he followed leaving his axe on the ground
where he had put it while attending to the injured woman. He added that he did not run a
long way, as he turned back because of the guns.

The learned trial judge found that Constable Chansa was killed in the course of an attack
upon the police by members of Chapaula Village; that the villagers had acted in
prosecution of a common purpose to attack the police; that the villagers had not acted
under a reasonable belief that the police had come to attack them or to destroy their
property; that the police had come to the village for a

p94

lawful purpose; that, accordingly, the attack upon the police was in prosecution of an
unlawful purpose; that the killing of the constable was without provocation and in
circumstances amounting to murder; that murder was a probable consequence of the
unlawful attack on the police and of the prosecution of the unlawful common purpose
which culminated in that attack; and that consequently all participants in that attack were
guilty of murder by reason of section 22 of the Penal Code. The learned trial judge also
found that the appellant was a participant in the unlawful attack and, therefore, was guilty
of the murder of the constable.

In my judgment, the findings that the constable was murdered ill the course of the
prosecution of an unlawful common purpose by a number of Chapaula villagers, and that
those villagers acted without any reasonable belief that they or their property was or was
about to be the subject of an unlawful attack by the police, cannot be impugned
successfully on this appeal. Recently this court had occasion to consider the law
pertaining to common purpose and reasonable belief in relation to the death of Inspector
Smith in the course of the same attack. (See Mutambo and five others v The People
(Judgment No. 24 of 1965).) The record in this case does not show that the learned trial
judge applied an erroneous view of the law on these matters. Further, the evidence in this
case as to the purpose of the police in approaching the village is far clearer than it was in
the earlier case and appears to have admitted of only those findings which the judge made

34
upon it. Consequently, the validity of the conviction in this case depends entirely upon
the validity of the finding that the accused participated in the prosecution of the common
purpose of attacking the police while they were engaged in lawfully performing a duty.

In order to determine whether the last-mentioned finding must be accepted, it is necessary

to look at the way in which it was made. The learned trial judge correctly stated that there
was no eyewitness of the appellant's 'direct bodily participation in the infliction of injury
to the constable personally'. He then stated that the learned State Advocate rested his case
very much on the appellant's own statements and he quoted from Sykes v Rex (1913) 8
Cr. App. R 233, at p. 236; a passage of which the substance is that a voluntary
confession, while it may be acted upon without it being corroborated usually is
corroborated, and it is usual to look for corroboration and to judge the truth of the
confession in the light of any other available evidence. The learned trial judge then
referred in detail to the first statement made by the appellant and also quoted in full the
second and third statements. He next examined the other evidence and found, rightly I
think, that if it were true, it 'strongly supports the accused's statements to the police in its
main essentials'. He next turned to the appellant's evidence and found two inconsistencies
between it and his long first statement and also found a number of other unsatisfactory
features. He then said 'Having heard the accused's evidence and observed his demeanour
most closely, I am satisfied beyond doubt that his attempts to put any form of innocent
complexion upon things are a pack of lies'. Finally, the learned trial

p95

judge said, after concluding that the attack on the police was in prosecution of an
unlawful common purpose: 'On the evidence I have no doubt or hesitation in finding the
accused guilty as charged and convicting him accordingly. I may add that I would be so
satisfied without his statements, and in turn they in themselves are absolutely damning.'

The effect of the appellant's evidence was, in substance, that he had joined in the
common purpose of pursuing the police without knowing the reason for the pursuit and
had withdrawn from it before the murder of the constable. His fourth statement is
consistent with that evidence. If that evidence were true, obviously the appellant had not
been guilty of participating in the murder. The result is that the validity of the appellant's
conviction depends upon whether the learned trial judge's finding that the appellant's
evidence was false is valid. In my judgment the answer to the latter question depends
upon a further question: Were the appellant's first and second statements to the police
properly admitted into evidence? [1] Despite the trial Judge s reference to the demeanour
of the appellant when giving his evidence and to being satisfied of the latter's guilt
without resort to the statements, it seems to me that he would not have approached the
question of the appellant's guilt by reference to the reliability of the statements if he did
not regard them as most material to his determination and that he must have been
influenced by them to a considerable extent, particularly in assessing the credibility of the
appellant's evidence. As that extent is not known it is impossible to say that the learned

35
trial judge would inevitably have arrived at the same conclusion without the statements
notwithstanding that he has indicated in all sincerity that he would have done so.

I turn, therefore, to consider the trials within the trial relating to the appellant's first and
second statement. It will be convenient first, however, to re-state the relevant law as I
understand it.

[2] An incriminating statement made by an accused person to a person in authority is not

admissible in evidence unless it is proved beyond reasonable doubt to have been made by
him voluntarily [3] In that context the words 'made voluntarily' do not mean 'volunteered'
but 'made in the exercise of a free choice to speak or to be silent'. R. v Lee (1950) 82
C.L.R. 133, at page 149, H.C. of Australia. A statement is not made in the exercise of
such a choice if it is made as a result of the accused's will to remain silent having been
overborne by a person in authority inducing him to break silence or to continue speaking
or to change his story by the use of violence, intimidation, persistent importunity or
sustained or undue insistence or pressure or any other means whereby hopes of material
benefit or fears of material evil, immediate or ultimate, are roused. (R. v Lee at 144.)
Hence, though questioning of a suspect or accused by the police is not necessarily an
inducement, it becomes so when conducted in a manner or to an extent which overbears
his will to remain silent or not to answer as desired. No doubt the police have a duty to
investigate thoroughly any crime or suspected crime which comes to their notice with the
object of discovering the perpetrator,

p96

and they are at liberty, in the discharge of that duty, to question any person, whether
suspected or not, who may be able to assist them, and to question him at length and by
resort to such lawful means of obtaining answers as they think fit. But, subject to certain
statutory exceptions which are not material here, such as the giving of name and address
to a police officer on demand, a person is not under a duty to answer police questions and
is at liberty not to answer them or to make such answers to them as he thinks fit. [4] As
already indicated, if the police question a person to such an extent or in such a manner as
to infringe that liberty of a person under interrogation by overbearing his will to remain
silent or to adhere to the answers which he has already made, his subsequent answers,
whether in the form of answers or of a statement, are involuntary and cannot be admitted
in evidence though, of course, they may be used as a source of information as to the
existence of evidence. (See Chalmers v H.M. advocate (1964 S.L.T. (Notes) 26) noted in
Volume XVII of the Journal of Criminal Law (July, 1954) pages 268-71.)

It follows that, when an incriminating statement by the accused to a person in authority is

tendered in evidence, the prosecution has the burden of proving beyond reasonable doubt
that it was not the result of the accused's mind having been influenced by any prior
inducement of the kinds mentioned. That necessarily means that if there were a prior
inducement, or if the reasonable possibility of there having been a prior inducement has
not been negatived, the prosecution has to prove that the inducement or possible

36
inducement either did not, or had ceased to, operate on the accused's mind when he made
the statement in question. (See R v Thompson [1893] 2 Q.R 12 at page 17 per Cave, J.
See also Mulonda v R (N.RC.A. 82/1964) where the law relating to evidence of
incriminating statements and acts is considered in extenso.)

While the prosecution has the burden of proving that any incriminating statement by an
accused to a person in authority which it tenders was made voluntarily, that burden does
not involve negativing the making of every possible form of inducement. That would be
an impossible task. [5] As the burden is to prove a negative, and a negative of wide
scope, the burden is initially discharged by adducing evidence sufficient to show that
prima facie the statement was made voluntarily, such as that it was made after a caution.
It is not discharged by the police officer concerned with the taking of the statement
solemnly swearing that it was made voluntarily, as that is merely deposing to an opinion
on the question which the court has to determine. [6] [7] If the accused objects to the
admission of the statement or it appears from the evidence already adduced or from the
statement itself that the statement might not have been made voluntarily, a trial within a
trial is necessary. [8] The prosecution then has to adduce such evidence of the
circumstances in which the statement was made as not only negatives the particular form
of inducement alleged by the accused or suspected by the court but any other form which
the circumstances suggest, as a reasonable possibility, may have been used. Thus, if the
evidence adduced as

p97

to the circumstances of the making of a statement which the accused alleged was
extracted from him by violence negatives the use of violence but shows that the accused
had been subjected to prolonged police questioning, the burden of proof is not discharged
unless the evidence also negatives the possibility that the questioning was in such manner
or to such an extent as to overbear the accused's will to remain silent. It is to be observed
that there is on presumption either of law or fact that police officers have not resorted to
prolonged and overbearing questioning as an inducement. Of all forms of inducement
that form is probably the most subtle, since whether questioning is over-bearing or not is
so often a question of degree and the line can be a very fine one - and one easily over-
stepped from excessive zeal - between questioning for information in aid of investigation
and questioning for the purpose of inducing an accused to incriminate himself.

Here, the first statement was made by the appellant in the morning of the 21st September,
1964, and the second statement was made in the afternoon of the same day when the
appellant was arrested obviously as a result of the first statement. For some reason as to
which I can only speculate, the second statement was tendered and made the subject of a
trial within the trial before the first statement. Further, the trial within the trial in respect
of the second statement was allowed to proceed without any real inquiry as to how the
first statement came to be made though such an inquiry was of necessity vital to
determining the admissibility of the second statement. It may be noted that the other two
statements were also tendered before the second statement.

37
The evidence which was adduced for the prosecution on the trial within the trial in
respect of the second statement was to the following effect: The appellant had been
questioned by the police on the 19th September while he was a patient in Ndola Hospital,
suffering from an injured foot; on the morning of the 21st September, 1964, he was
removed, with the consent of his doctor, to Western Division Police Headquarters, where
he was questioned for an hour and forty minutes after which he made a statement under
caution; at 12.30 p.m. he was taken back to the hospital for medical examination; some
time after 2 p.m. he was arrested and cautioned; and he then made the second statement,
no threat, violence or promise having been offered to him. The accused made an unsworn
statement on the trial within the trial. It was to the effect that he had made the second
statement because he had been beaten and he was sick.

The learned trial judge was asked by counsel for the defence to reject the statement on the
grounds that it had been extracted both by violence and under the influence of prolonged
questioning which had preceded the earlier statement while the appellant was sick. He did
not accede to that request, holding that the statement was admissible as the evidence was
'clear and cogent that no force, promise or threats were used'.

It is not for an appellate court to upset a trial judge's decision on a trial within the trial
any more than it is for it to upset his

p98

decision on the trial itself unless the decision is unsupported by the evidence, is based on
an error of law, or is the result of a manifestly wrong or unreliable approach to the
evidence.

Here, with all respect to the learned trial judge, his ruling appears to me to have been
based on a misconception of the law in that it seems to have been based on the common
fallacy that an incriminating statement is admissible if it has been induced otherwise than
by violence, threats or promises, and it ignored both the possibility that the first statement
had been induced by police questioning of an overbearing kind and [9] the necessity for
the effect of any such prior inducement having ceased to operate at the time of the second
statement for it to be admissible. Further, in my judgment the evidence adduced on the
trial within the trial was insufficient to negative the reasonable possibility which it raised
namely that the first statement had been induced by oppressive questioning, and it was
also insufficient to show that the effect of any such possible inducement had ceased to
operate upon the appellant's mind when he made the second statement. As to the
insufficiency on the first point, the evidence did not extend to showing what was the
nature of the questioning which preceded the first statement - questioning which occurred
on two separate days - and the manner in which the questioning was conducted. Neither
did it show the duration of the questioning on the first day. As to the insufficiency on the
second point;, the evidence did not show the extent to which the appellant had
incriminated himself in the first statement, as presumably he had since he was arrested
almost immediately after it, but merely showed that he had been cautioned when arrested.
If an accused has been induced to make a gravely incriminating statement, he is unlikely

38
to have been freed from the effect of that inducement by administering to him a couple of
hours later a caution, even if the caution were administered with unusual solemnity. It is
true that the appellant did not suggest that he had been induced otherwise than by
violence inflicted upon him while he was sick. But, as I have said before in this court,
when the accused is an ignorant villager the prosecution can derive little assistance in
establishing the voluntariness of a statement from the fact that the accused had falsely
alleged that he made it as a result of violence. An ignorant villager may realise that he has
been induced in some way but lie as to the form of inducement in the belief that it is only
inducement by violence which vitiates an incriminating statement and from an inherent
tendency 'to gild the lily'. Moreover, the prosecution can derive no assistance at all from
such a false allegation when, as here, its evidence on the trial within the trial was
insufficient to establish a case for the accused to answer. It follows, in my judgment, that
the second statement should have been held to be inadmissible after the trial within the
trial relating to it.

The evidence given by the two witnesses who were called for the prosecution in the trial
within the trial relating to the first statement was more detailed than that given in the
earlier trial within the trial. As to some of the details, the two witnesses differed and the
more reliable account appears to have been given by the

p99

European inspector who was in charge of the investigation. In substance, his evidence in
chief was as follows: He first interviewed the appellant on the 6th August. At that time
the appellant was apparently a patient in the Ndola Hospital with an injured leg. The
inspector questioned the appellant for about two minutes after which he formed the
opinion that the appellant was too ill for further questioning. On the 19th September,
1964, the appellant was taken from the hospital to Western Division Police Headquarters
where he was questioned for about three hours with the object of seeing if he could help
in the investigations into the death of Inspector Smith and Constable Chansa. After the
questioning the appellant was taken back to hospital. On the 21st September the appellant
was again taken to police headquarters and questioned from about 9 a.m. to 10.30 a.m.
when the appellant volunteered to make a statement. The statement was made through an
interpreter, and was recorded in English. A stage was reached when the Inspector
directed a caution to be administered, after which the statement was recorded in Bemba.
No threat, violence or promise was directed to the appellant and his physical disabilities
did not appear to affect his making of the statement. In cross-examination, the inspector
said: That on the 19th September, he questioned the appellant as to his whereabouts on
the 24th July, 1964, and was told that he had not been at Chapaula Village on that day but
he had been shot there by the police on the following day; that the inspector continued
questioning the appellant because he was not satisfied with his story and he was hoping
that the appellant might say that he was at the village on the 24th July; that the inspector
probably said 'I know you were there': that the appellant made contradictory answers
which led the inspector to believe that he was not telling the truth as to his whereabouts;
that the inspector thought that the first thing he said to the appellant on the 21st
September was to ask him whether he wished to tell the truth or to stick to his story after

39
having had the weekend to think about it, and that he received the reply that the appellant
was sticking to his story; that later the inspector 'managed to break his (the appellant's)
alibi', and he convinced the appellant that he had, whereupon the appellant agreed to tell
the truth; that he had had reason to believe that the appellant had been telling 'a load of
lies' and he, the inspector, was trying to get to the truth; that it was only by argument that
the appellant was persuaded to change his mind; that the alibi was broken when the
inspector asked the police at Chinsali to find out from the appellant's father the
movements of the appellant; that the inspector thought that when the appellant's alibi was
broken he would invent a new one; that the inspector then asked the appellant if he
wished to make a statement but it would only be a waste of time if it were not the truth;
that the appellant said he wished to make a statement; and that, to the surprise of the
inspector, the appellant seemed quite happy when he said that.

In an unsworn statement the appellant alleged that on the 19th September he was beaten
by two detectives but he continued to deny the charge; that on the following day he was
not feeling well;

p100

that on the 21st September the police started asking him such questions as 'Why should
you deny this? Why should you deny striking him with an axe?'; the European officer
then slapped his face twice; and that he made an admission because he was troubled by
pain in his legs as a result of the metal in one leg having become bent, and because he
was troubled by the deaths which had taken place in Chapaula Village.

The learned trial judge admitted the first statement into evidence because he did not
believe the appellant's story of events and he had no doubt that 'the statement was taken
and given without force, threats, pressure or promises and not merely to secure
deliverance from an ordeal by prolonged cross-examination'.

In my judgment, the first statement was also wrongly admitted into evidence as the
learned trial judge's decision in the trial within the trial relating to it is unsupported by the
evidence and cannot be accepted. Not only was the evidence insufficient to establish
beyond reasonable doubt that the appellant was not induced by prolonged questioning of
an overbearing kind to make a statement but it points strongly to the conclusion that he
was so induced.

On the first day's interrogation the appellant made a statement as to his whereabouts
which the police did not believe. He adhered to the statement right up to the end of the
interrogation. Obviously, he was under pressure by questioning to depart from that
statement but his will to adhere to it remained firm. The second interrogation started with
a clear manifestation that the police regarded his story as untrue and he was asked if he
intended to adhere to it or to tell the truth. He stated that he intended to adhere to his
story, thereby manifesting that his will was as it was on the previous interrogation. The
appellant was then further questioned, and 'argumentatively' persuaded; and told that his
story would be checked with his father, whereupon the police succeeded in 'managing to

40
break the alibi', and the appellant agreed to make a statement. Obviously the breaking of
the alibi had been preceded by the police breaking or overbearing the appellant's long
sustained will to adhere to the alibi. That being so, it passes my comprehension how the
first statement could be held to have been made voluntarily, particularly as not even the
pretence of a caution preceded its commencement. In actual fact, as shown by the
statement itself, it was not until the appellant had actually incriminated himself that a
caution was administered; a stage when it was very unlikely to remove the effect of the
inspector's impression that the appellant seemed 'quite happy' when he said that he would
make a statement; it may be that it was a look of relief rather than happiness at the ending
of an ordeal by mental onslaught upon his will.

Having reached the conclusions that both the first and second statements were wrongly
admitted in evidence and that the conviction was not supported by evidence, it followed,
in my judgment, that the appeal should be allowed.

p101

Judgment
Blagden, C.J.: I have also come to the conclusion that this appeal should be allowed -
albeit not without some hesitation.

The evidence which implicated the appellant as one of the participants in the prosecution
of the unlawful purpose, which resulted in the death of Police Constable Chansa, really
falls into two categories:

(1) the evidence of eyewitnesses as to what the

appellant did; and
(2) the statements made by the appellant himself to the police as to what he
did.

The eyewitness evidence clearly puts the appellant on the scene, but in my view, standing
by itself it was not conclusive of his participation in the unlawful enterprise. The learned
trial judge concluded a careful and reasoned judgment with these words:

" On the evidence, I have no doubt or hesitation in finding the accused guilty as
charged and convict him accordingly. I may add that I would be so satisfied without his
statements and in turn they in themselves are absolutely damning."

Despite the very positive expression in which this finding is framed, I am doubtful
whether the judge really assessed the weight and significance of the eyewitness evidence
on its own without any thought at all of the statements. My doubt arises from the fact that
the whole tenor of his judgment points to his regard of the appellant's own statements as
the primary and main evidence against him. There was some reason for this. As the judge
observed, there was no eyewitness evidence of the appellant's direct participation in the
infliction of any injury to the deceased personally. [10] Having made that observation the

41
judge went straight on to consider the appellant's statements, prefacing his findings on
these with a reference to the case of Sykes v R. (1913) 8 Cr. App. 31. 233 as authority
for the proposition - which I readily accept - that a man may be convicted on his own
confession alone, but that it is usual to look for some corroborative evidence of it.

The judge adopted this process. He had admitted the statements and he looked for and
found corroboration of parts of those statements in the eyewitness evidence. I agree that
the cumulative effect of the statements and the eyewitness evidence taken together was
damning. But if the eyewitness evidence is examined in isolation, I do not see that it can
be said that without reasonable doubt it establishes the appellant's participation in the
unlawful enterprise which culminated in Constable Chansa's death.

It follows in my view, that if the statements had not been admitted in evidence the
appellant would, or should have been, acquitted.

This is the crux of the appeal: should the appellant's statements have been admitted in
evidence or not?

p102

The rule is simple: a statement made by an accused person to a person in authority is

admissible in evidence provided it was made by him freely and voluntarily. [2] The
burden of proving that it was so made lies on the prosecution; and the standard of proof
which the prosecution has to attain is the criminal standard of proof beyond reasonable
doubt. In Bater v Bater [1950] 2 All E.R. 458, Denning, L.J., used words regarding the
standard of proof in both civil and criminal cases, which have been expressly approved in
subsequent cases. He said at page 459: 'It is true that by our law there is a higher standard
of proof in criminal cases than in civil cases, but this is subject to the qualification that
there is no absolute standard in either case. In criminal cases the charge must be proved
beyond reasonable doubt, but there may be degrees of proof within that standard. Many
great judges have said that, in proportion as the crime is enormous, so ought the proof to
be clear.' I would say, without hesitation, that proof of the voluntariness of a confession
of murder requires a very high degree of proof.

I would also like to stress this: what has to be proved to this very high standard is not
something negative; it is not simply the absence of any form of coercion or inducement.
[8] What has to be proved is the positive fact that the statement sought to be admitted was
made freely and voluntarily. Naturally proof of the absence of coercion or inducement
will go a long way to establishing that fact. But depending on the circumstances of each
case, it may not go the whole way.

There were four statements made by the appellant here, the first was a long statement and
was made on the 21st September, 1964. That statement was not prefaced by any form of
caution to the appellant, but in the course of it the appellant stated that his intention was
to kill the police as there was a fight between them. He was then immediately cautioned,

42
but the appellant elected to proceed with his statement and not unnaturally what followed
amounted to a somewhat detailed confession.

The second statement was made on the same day, not long after the first when the
appellant had been arrested and cautioned. It too amounted to a confession. The
admissibility of both these statements was objected to on the grounds that they were not
made voluntarily. A trial within the trial was held in respect of each and in each case the
judge decided that the statement had been made voluntarily and was therefore admissible
in evidence.

The third statement was made two days after the first two. Its admission in evidence was
not objected to. It consisted of only one sentence: 'I will go and say it in court when I will
see my friends'.

The fourth statement was made very much later on the 18th January, 1965. Apparently
the appellant was re-arrested on that day and re-charged. The reason for this peculiar
procedure is not clear from the record. The appellant was also cautioned and he made in
reply the fourth statement. The admission of this last statement was at first objected to on
the grounds that it had been induced by physical violence and threats, but after a trial
within the trial had

p103

been started to determine this issue, Counsel for the appellant announced that his
instructions were not to contest it. The statement consisted of the words: 'I deny the
charge. I did not kill a person at all, but I was present at the fight. We were chasing
policemen.' Except for the last observation, which is undoubtedly damaging, this
statement is clearly exculpatory.

[11] The admission in evidence of the first two of these statements was a vital matter in
the trial. In justice to the defence and to put the whole matter in its correct perspective, I
would have thought it essential for the prosecution to introduce these statements in the
strict chronological order in which they were made, even if this necessitated the recall of
a witness who had already given evidence about other matters. Instead, however, the four
statements were introduced to the court in the order three, four, two, one. I consider this
procedure was prejudicial to the defence and confusing to the court. I trust it will not be
adopted on any future occasion. If the correct order had been followed, I think it unlikely
that the initial objection to the fourth statement would have been withdrawn.

The vital statement was, of course, the first one. [9] If there were any inducements which
brought about the making of that statement they would most likely have retained their
influence on the appellant when the time came shortly afterwards for him to make his
second statement, and the two statements would stand or fall together.

In the judgment which has just been delivered, Charles, J., has gone carefully into the
evidence which was adduced in the two trials which were held within the trial to

43
determine the admissibility of the first two statements. I have no quarrel to find with the
learned trial judge's conclusions that the appellant's allegations of being beaten to force
him to make these statements were unfounded. The fact that the appellant lied about this
when he made his unsworn statements during these trials within the trial doubtless had an
adverse effect on the learned trial judge's assessment of his credibility, but, as Charles, J,
has pointed out, the appellant is a simple villager who would be quite likely to think that
the only type of inducement which would carry any real weight with the court was
inducement by physical violence.

[3] But in any case the exercise of violence is not the only way in which a statement can
be rendered involuntary. If an accused person's will to remain silent, or to say no more
than he has already said, is overborne by any means, however considerately carried out,
and he melees a statement in consequence, I fail to see how that statement can be
regarded as truly voluntary.

What happened here has already been described by Charles, J. Shortly it amounted to
this: the appellant was first interviewed on the 6th of August, 1964, but he was then a
patient in the Ndola Hospital and it was appreciated that he was not well enough for
questioning. On the 19th September, 1964, when he was still undergoing treatment at the
hospital, he was questioned for about three hours. There is a surprising conflict in the
evidence as to whether this interview took place at the hospital or at Western Division

p104

Headquarters, but I do not think it is necessary to try and resolve it. On the 21st of
September, he was taken to police headquarters and again questioned. There is a further
conflict as to how long this questioning lasted. One officer said thirty minutes, but he was
not sure; another officer said that the appellant intimated that he was wishing to make a
statement soon after he came into the office; Inspector Horlock said the appellant was
questioned for one hour and forty minutes. This confusion of recollection however, is
understandable. There must have been many witnesses to interview and much
investigation to complete. Suffice it to say that at that interview the appellant made the
first statement in the course of which, as I have already related, a caution was rather
belatedly administered.

The important evidence touching on the voluntariness of the first statement was that
relating to the two interrogations on the 19th and 21st of September. That evidence which
Charles, J., has analysed in some detail points to the fact that the appellant was
interrogated and, I would say - although Inspector Horlock denied this - cross-examined
for some time, and that in the course of those interrogations some initial alibi which he
had put forward was broken down, and he changed his story.

What attention did the learned trial judge pay to these particular circumstances -
remembering that he had to be satisfied beyond reasonable doubt that whatever was done
did not operate on the appellant as an inducement to make any statement? At the end of
the second trial within the trial which determined the admissibility of the first statement,

44
the learned trial judge said, inter alia, that he would feel constrained to reject that
statement if he felt that it had been obtained in the circumstances described at paragraph
800 of Phipson on Evidence (10th Edition). That paragraph relates to statements obtained
as a result of questioning and states that questioning will not as such render a confession
in answer inadmissible; but that prolonged cross-examination would exclude confessions
made in order to bring the ordeal to an end. The learned trial judge rejected the
appellant's story of events and found that Inspector Horlock, who had given evidence in
both trials within the trial, was clearly a witness of truth. The judge stated that he had no
doubt that the first statement was taken and given 'without force, threats, pressure or
promise, and not merely to secure deliverance from an ordeal'. But in the circumstances I
do not think this finding goes quite far enough. It excludes certain elements of coercion
and inducement, but it does not grapple with the all important question of whether the
tactics employed by Inspector Horlock in the interrogation which resulted in the
appellant's alibi being broken down and in his changing his mind and consequently his
story, had had the effect of overbearing his will to remain silent or to stick to his story. In
the light of this omission I do not think it can be said that the prosecution properly proved
that the statements of the appellant were made freely and voluntarily and in consequence
they should have been excluded.

I would interpose here to say that I do not intend by these observations to imply any
criticism of the police methods employed

p105

in this case - I can see nothing wrong with them at all. The police are entitled to
interrogate those whom they wish when they are investigating the commission of a crime
and they would be expected to pursue their investigations with thoroughness. But when it
comes to the admission in evidence of statements from accused persons obtained in
consequence of interrogation or otherwise, the trial court is bound by certain rules which
must be scrupulously adhered to.

As I have already indicated, with the exclusion of the statements the conviction cannot be
supported for lack of other evidence. [1] But there is another aspect of the matter which I
think I should point out. If these statements had not been before the learned trial judge, he
would not have been able to detect the inconsistencies which he did detect - and comment
upon - between what the appellant said in his statements and what he said in evidence
before the court. Without those inconsistencies before him, the learned trial judge might
not have formed such an adverse view of the appellant's credibility; he might even have
thought that there was a possibility of some truth in the story he told the court. If that
story were true, it is doubtful if the appellant really joined in the prosecution of the
common purpose to cause grievous harm to Constable Chansa; even if he did it would
seem that it was at least a possibility that he dissociated himself from it when he heard
the sounds of gun fire; and that was before the common purpose had achieved its object.

For all these reasons I agree that this appeal should be allowed.

45
Judgment

Dennison, J.: I discern in this matter a need to dissent from the conclusions which have
just been expressed.

It seems clear, as my brother Charles has put it, that the validity of the conviction
depends on the validity of the finding that the appellant participated in the prosecution of
the common purpose of attacking the police representatives and killing or doing grievous
harm to Constable Samuel Chansa. That, in turn, depends upon the admissibility in
evidence of the two statements made by the appellant on the 21st September, within
which limits my dissent is confined.

In the appeal of Mbopeleghe (1960 R. & N. 508, at page 512) Clayden, F.J., as he then
was, considered the authorities and referred to the 'rule of law that a confession must be
proved beyond reasonable doubt to have been made voluntarily'.

The voluntary quality of the two statements now in question has been examined and
assessed in a number of ways. I take such a view of the facts apparent in the evidence as
to conclude that the statements were made voluntarily, that the will of the appellant was
not overborne, and that the statements were properly admitted.

As I see it, merely from the face of the record, and I was glad to hear the learned
President speak of it so strongly, it would have been a far better procedure at the trial to
have tested first the admissibility of the earliest, long statement made on the morning of
the 21st September, before the appellant was arrested. That would have led on, in a more
logical sequence, to an examination of whether

p106

or not the statement made in the afternoon, after arrest, was tainted by any irregularities
apparent in the evidence relating to the long statement made in the morning.

The circumstances surrounding the taking of each of these statements should, in my view,
be examined together now in assessing their admissibility and the weight to be given to
them and the relevant sets of evidence should not be shut apart in separate compartments
to be examined separately. Certainly in the appeal of Jordan Sawala to the Federal
Supreme Court that Court made a comprehensive review of the circumstances affecting
the making of each of three statements in order to examine their inter-relation (Sawala v
R. F.S.C. Judgment No. 37/1961); (mimeograph).

This appellant had been in hospital in Ndola at least from the 6th August, 1964, suffering
from a wound received as described in the evidence. On that date an Inspector Horlock
thought that he was too ill to be interrogated. That Inspector, the investigating officer
here, did not see him again until he was interviewed on Saturday, the 19th September,
1964, while still a resident in that hospital. I find it unfortunate that the evidence at the
trial has been left in such a state that there now remains conflicting evidence as to where

46
that interview took place. All witnesses on that point were speaking at the trial of events
which had taken place some four months before. Making due allowance for their
difficulty in that respect, at the end of the day there lay in the record the evidence of a
Detective Assistant Inspector Chifita indicating that on the 19th September the appellant
had been interviewed at the hospital for some three hours while 'He was lying on the bed
with an injured leg'. This conflicted with the evidence of Inspector Horlock indicating
that the interview of the 19th September took place, over some three hours, at the police
headquarters in Ndola, to which place the appellant had been removed from the hospital
with the authority of the hospital staff. Inspector Chifita had acted as interpreter for both
interviews.

Horlock was pressed on this early in his cross-examination and remained unshaken as to
the place of the interview on the 19th September. The point was not taken on behalf of
the appellant on this appeal and one accepts that Horlock's memory of the place was the
better. There has certainly been no suggestion on behalf of the appellant that he had been
interviewed on the 19th on two separate occasions, each for a period of three hours.

There followed a further interview on Monday, the 21st September, at police

headquarters, again with the permission of the hospital authorities.

According to Horlock, questioning began at about 9 a.m. and the appellant volunteered to
make a statement at about 10 or 10.30 a.m. at a stage when that witness had not decided
to charge him with any offence. According to Horlock he had not been in custody prior to
his subsequent arrest that afternoon.

p107

He may well have been in the unhappy state of twilight between true custody and what
prosecution witnesses sometimes refer to as being 'detained for questioning', a completely
unlawful and improper procedure. Witness the view put forward in evidence here by a
Sub - Inspector when he said:

" He was being kept by the police even when at hospital. He was not then under
arrest. There is a difference between custody and arrest. In custody he has not been
cautioned or warned."

See in this respect the helpful articles on police interrogations in (1960) Criminal Law
Review, especially between pages 313 and 317 and between pages 328 and 334.
However, on this trial and on this appeal, no question has been raised on behalf of the
appellant as to questions being asked of him after his arrest or after Horlock, the
investigating officer, had cautioned him. The more familiar complaints as to breach of the
Judges' Rules do not therefore arise and for my own part I see no breach of them here.

Undoubtedly, he was subjected to some three hours of interrogation on Saturday, 19th

September, and to some keen, persistent and argumentative questioning on the morning
of Monday, 21st September.

47
His main complaint was of physical violence on the part of police officers, which
complaint was rightly rejected on the evidence, and most certainly so with regard to the
taking of the statement made after arrest at the hospital in the afternoon when the police
officers concerned were interviewing the appellant in the open air in the quadrangle of
the hospital in the view of about fifty people. There is no question here on the evidence of
harsh treatment or physical violence.

The Judges' Rules to be observed in this country are those presently to be found in
paragraph 1118 of the 35th edition of Archbold and not the Rules which were re-stated
by the judges in England in January, 1964, and which have not been adopted as
administrative directions for observance by the police authorities in this country. In terms
of rule 1 of the earlier Rules there set out:

" When a police officer is endeavouring to discover the author of a crime, there is
no objection to his putting questions in respect thereof to any person or persons, whether
suspected or not, from whom he thinks that useful information can be obtained."

Here Inspector Horlock would appear to have been doing just that. He carried it out over
some three hours on Saturday the 19th and some hour or an hour and half on Monday, the
21st September. One knows of much longer interrogations in the United Kingdom, for
example, with resulting confessions being held admissible. Police officers conduct these
interrogations at the risk that any resulting statement may be ruled as inadmissible
because of the circumstances in which it was taken being held to be unfair or detracting
from its voluntary quality. The courts have not been hesitant in ruling against statements
made in circumstances unfair to the prisoner.

p108

I would borrow from an article by Christopher Williams, again to be found in the

Criminal Law Review for 1960, this time at page 352. He wrote at page 354 of conditions
in England at that date, which conditions may fairly be said to prevail in this country
also:

" . . . it is a question that a crime-beset society such as ours will have to face for
itself before long, and answer. For, despite what may be said to the contrary by the
academics and the theorists, the law exists for the benefit of the community. It is not an
elaborate game of chequers, governed by rules of absolute ethical validity, so much as a
means, admittedly imperfect, by which society can protect itself from the socially
inconvenient consequences of such prohibited acts of self-indulgence as murder, rape,
theft, disorder, and so on. It must, therefore, be drafted in terms of human nature and, if
you like, of human weaknesses. The procedures it contemplates for determining whether
a particular person has, or has not, committed particular crime must be capable of
operation by the agencies employed by society for that purpose.

48
 Police officers may therefore find some reassurance in the reflection that, though
the high winds of academic controversy and complaint may be noisily ruffling the
branches above their heads, they stand in relative quiet below, with their feet on the
ground, surrounded by the strong trunks of judicial understanding. For it is to the courts
that the police must look for control and guidance in their difficult duties. The judges,
and the Bar from which the judges come, are practical men, and know well that the police
have a job to do, and that if they are prevented from doing it reasonably effectively, it is
society which must pay the price.

This is not to say that the police can safely try their best to secure convictions by
outmanoeuvring the guidance the judges have given them in the form of the Judges'
Rules. They must continue to act fairly and justly within the general terms of their duty to
keep crime within reasonable limits. This they have done in the past, and no evidence
whatsoever has been adduced to suggest that mistakes by the police in this field are
increasing."

In the instant case, and each case must be decided on its own facts, the appellant must
have been familiar, unhappily for him, with the hospital surroundings in which he had to
live for over four months prior to his confession. He was there, in familiar surroundings,
from the questioning on the Saturday to the interview on the Monday morning. I do not
see from the evidence why he should not have returned refreshed on the Monday morning
as a man of firm resolution to decide as he pleased.

On the Monday, the course of the interrogation would have shown him that certain parts
of his earlier story were known by the police to be untrue and it is not apparent in the
evidence that he was tricked, bullied or forced in any way into confessing. The
interrogation was argumentative at times but I am not impressed by the appearance of
some of the colourful phrases appearing in the

p109

record, which was not a verbatim transcript but was maintained in narrative form by the
learned trial judge from the questions and answers heard by him.

Inspector Horlock and other police officers were subjected to the close and very
competent cross-examination which one has come to expect of the learned counsel who
appeared for the appellant. No doubt many of what are recorded as the answers of
witnesses originated in the form of questions, which received a monosyllabic reply or
little more.

This may well apply to the colourful replies of Inspector Horlock as recorded on page 35
of the appeal record, such as:

' I managed to break his alibi',

or

49
 ' I succeeded in getting him to change his mind.'

It would certainly be unusual to hear from the lips of a police officer what appears on
page 31 of the record as the evidence of Inspector Chifita, who is recorded as saying:

' We were at him for three hours.'

Despite the periods of interrogation involved here and the method of argument shown in
the evidence I cannot, with respect, go so far as to agree with the view of my brother
Charles when he referred to Inspector Horlock's efforts vis-a-vis the appellant as '. . . an
ordeal by mental onslaught upon his will'.

I see them, instead, as a keen, somewhat prolonged process of inquiry on a man who was
not in custody, had not been charged and was interviewed in the first place in a general
way, as someone who 'might have been a very good State witness', as Horlock put it.

There are also recorded as his answers in cross-examination as to the Monday morning:

" Between 9 and 10.30 I went through what happened to the weapons. We had
nothing then at trial stage and it was important to trace how these weapons got from
where they had been to Chapaula Village.

I managed to break his alibi. I convinced him and he agreed that he had not been
at this village and said he would then tell us the truth "

If an accused person knows the truth and chooses to tell it to the police then, prima facie
and subject always to the rules and principles governing such a matter, the police would
be entitled to put it before the court.

I see no reason here for any great surprise, as was mentioned in the evidence, that the
appellant should have appeared happy to speak at that stage, when he had, so to speak,
decided to get it off his chest.

I will not read it all in detail but would refer to Professor Glanville Williams at page 334
of the same 1960 volume of the Criminal Law Review:

p110

" The police are remarkably successful in obtaining incriminating statements by

means of interrogation, and this very success naturally awakens dark suspicions. But it is
certainly not necessary to suppose that unfair methods have been used. When an offender
has been caught in incriminating circumstances, he often judges it better to confess and
plead guilty, hoping thereby to get a lighter sentence. Moreover (and this is a fact too
little understood by those who express alarm when confessions are made to the police), a
guilty person who finds himself detected often wishes to confess in order to obtain relief

50
from the feeling of guilt. The point cannot be better expressed than in words of Wigmore
[in Evidence, 3rd ed., iii, para. 851].

'The nervous pressure of guilt is enormous; the load of the deed done is heavy; the
fear of detection fills the consciousness; and when detection comes, the pressure is
relieved; and the deep sense of relief makes confession a satisfaction. At that moment, he
will tell all, and tell it truly. To forbid soliciting him, to seek to prevent this relief, is to
fly in the face of human nature.' "

Here, the confession flowed on freely and fully. The appellant was cautioned once he
began to incriminate himself and went on to the mention of the deceased police officer
being attacked as he lay on the ground and to say: 'I myself hit him with the axe which I
carried. I don't know where I hit him but I think it might have been on the head.' There
has not been raised at any stage any question of his words being inaccurately recorded or
of anyone recording what he did not say. Nor has any complaint been made as to
questions by police officers in the course of the making of the statement.

I would have found here a very strong rebuttal beyond any reasonable doubt of the view
that the will of the appellant to remain silent or to say what he wanted to say was
overborne unfairly to the extent that his statement of the morning should have been held
inadmissible.

From that, I would not find any continuing or associated complaint against the
admissibility of his short confession made after being arrested and charged early in the
afternoon when he said: 'I admit that I was present at the crowd of those who killed
Constable Chansa. I struck him with an axe.' He said that in the view of about fifty people
in the quadrangle at the hospital, Dr Imkamp having examined him at 12.30 p.m. after the
interrogation of the morning and, presumably, noting at least no signs of physical ill-
treatment.

There was evidence to corroborate these two statements and with those two statements in
evidence his association with the common purpose was proved.

I would, therefore, have dismissed this appeal.

Appeal allowed

51
SALUWEMA v THE PEOPLE (1965) Z.R. 4 (C.A.)

COURT OF APPEAL
CONROY, C.J., BLAGDEN, J.A., CHARLES, J.
17TH FEBRUARY, 1965

Flynote and Headnote

[1] Criminal Procedure - Charges - date of death in charge of manslaughter or

murder:

In a case of manslaughter or murder, the charge should denote the date of death as the
date of the crime.

[2] Evidence - Burden of proof - proof beyond reasonable doubt - 'reasonably

possible':

If the accused's case is 'reasonably possible', although not probable, then a reasonable
doubt exists, and the prosecution cannot be said to have discharged its burden of proof.

[3] Evidence - Weight - lying by accused, effect of:

Lying by the accused may render conclusive reliable evidence against him but cannot add
weight to discredible, conflicting or otherwise unreliable evidence.

Cases cited:
(1) R. v Esau Zimba, F.S.C. Judgment [68] 1961 (mimeograph).
(2) R. v Lujo, 13 E.A.L.R. 56.

For the appellant: Yousuf.

For the people: Mitchell - Heggs.
________________________________________
Judgment

BLAGDEN, J.: . . . [The summary of facts and the weighing of conflicting testimony are
largely omitted in this report, the prosecution alleged that the appellant caused the death
of the deceased by kicking him in the head at a dance and beer drink on the evening of
22nd August, 1964.] . . .

After the fight was over it was obvious that the deceased was seriously injured. He was
eventually taken to hospital, where he died on the 30th August, that is to say some eight
days later. [1] I would interpose my summary of the facts at this point to observe that the
information in this case was in error in charging the date of the murder as the 22nd of
August, 1964. The correct date which should have been charged was the 30th August, the
date on which the deceased actually died. As to this see Archbold (35th Edition)

52
paragraph 2547. The matter is put succinctly in paragraph 6 (4) of Chapter 4 of the
Magistrates' Handbook [Porter, Ed., Lusaka (1964)], at pages 12-13 in these terms:

" No crime of murder or manslaughter is committed until the death occurs,

therefore to charge the date of the crime as the date of the injury, not the date of the death
(where these occur on different dates) is considered illogical and wrong. In cases of
murder and manslaughter, the practice set out in Archbold should therefore be followed
and the date of death should be charged as the date of the murder or manslaughter. This
practice was approved by the Federal Supreme Court in R v Esau Zimba F.S.C. Judgment
68 of 1961, and the East African case of R. v Lujo 13 E.A.L.R. 56 should not be
followed."

p5

The learned trial judge expressed himself as satisfied beyond reasonable doubt that it was
the kick which the appellant administered to the deceased on his head which fractured his
skull and caused his death. He may have given consideration to the possibility of the fatal
injury having been inflicted during the course of the first fight. If he did so he must
certainly have rejected it. But nowhere in his judgment does he make any reference to
this possibility....

Then it is clear that the deceased received at least two fist blows in the first fight and one
or both of them was of sufficient force to knock him down. I have already referred to Dr
Swain's evidence as to how the fatal blow might have been struck. She said:' I would
think it unlikely that the blow would be caused by a fist'. [2] I do not consider that that
observation rules out the reasonable possibility that this was how the fatal blow was
inflicted. It may not be probable, but if it is only reasonably possible, as I think it is here,
then there must be a reasonable doubt as to whether it was the kick administered by the
appellant which caused the deceased's death. In these circumstances the prosecution
cannot be said to have discharged the burden of proof upon it of proving the accused's
guilt beyond reasonable doubt; and that is fatal to this conviction. It was for these reasons
that I concurred in allowing this appeal.

Judgment

Conroy, C.J.: I agree. 20

Judgment

Charles, J.: My reasons for allowing the appeal are substantially those of the learned
Justice of Appeal....

The fact that the appellant himself gave lying evidence as to his actions could not
conclude the case against him. Such a fact is material when assessing the weight which is
to be given to evidence against an accused which appears to be credible and probable in
itself, and it may add such weight to such evidence as renders it conclusive against the

53
accused. It cannot, however, add any weight to evidence which appears to be discredible,
conflicting or otherwise unreliable; the only addition the accused's lies can make to such
evidence is to add to its confusion and uncertainty.

54
ZAMBIA ELECTRICITY SUPPLY CORPORATION LIMITED v REDLINES
HAULAGE LIMITED (1992) S.J.

SUPREME COURT
GARDNER, A.J.S., SAKALA AND LAWRENCE, JJ.S.
S.C.Z. JUDGMENT NO . 10 OF 1992

Flynote

Negligence - Accident - Liability when there is an act of God - Doctrine of

res ipsa loquitur

Headnote

The respondent was driving along Great East Road when he was suddenly confronted by
a water tank on an unlit trailer moving towards him in the middle of the lane in which he
was travelling. He attempted to brake, but because of the load he was carrying his truck
could not stop within a short distance, and, fearing collision with another truck on his left
and in order to avoid this sudden obstruction, he swerved to his right where he collided
with an oncoming bus which had been travelling only on parking lights. The water tank
had come loose from another truck belonging to the appellant. The respondent then sued
the defendant and judgment was given in his favour.

Held:

(i) The doctrine of res ipsa louitor applies where the thing that inflicted the
damage was under the sole management and control of the defendant, someone
for whom he is responsible or when he has a right to control, where the
occurrence is such that it would not have happened without negligence and
where there must be no evidence as to why of how the occurrence took place

Cases referred to:

(1) Kenmuir v Hatting (1974) Z.L.R. 162
(2) Deutsch, Darling & Banda v Zambia Engineering and Construction Company
Limited (1969) Z.L.R. 161, 169
(3) Richie v Western Scottish Motor Traction Co.Ltd. (1935) S.L.T. AT p.13
(4) Henderson v Jenkins (1969) 1. ALL ER. 401 reserved (1969) 3 ALL E.R. 756
(5) Jere v Shamayuwa and Another (1978) Z.L.R. 204

For the Appellant: Mr. G.M. Zulu - company Legal Counsel

For the Respondent: Mr. L. Nyembele, of Ellis & Company
___________________________________________
Judgment

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

55
This is an appeal against the decision of a High Court judge allowing the Redlines
Haulage Limited claim for damages arising out of a motor vehicle accident. For
convenience in this judgment we shall refer to the Zambia Electricity Supply Corporation
Limited as the defendants and Redlines Haulage Limited as the plaintiffs which they
were in the court below.

The facts of the case were relatively simple. On the 4th March, 1984 at about 1830 hours
the plaintiff's driver (PW1) was driving a truck and trailer, laden with maize, along the
Great East Road from Chipata to Lusaka. As he approached the University of Zambia
Great East Road Campus (UNZA) he was travelling along the inner lane of the road and
in the lane immediately to his left was another truck going in the same direction. As it
was dusk the lights of his truck were on but dimmed. Other vehicles also travelling from
the opposite direction had their dim lights on. On approaching the UNZA junction he
began to descend when he was suddenly confronted by a water tank on an unlit trailer
moving towards him in the middle of the lane in which he was travelling. He attempted
to brake, but because of the load the truck could not stop within a short distance, and,
fearing a collision with the truck on his left and in order to avoid this sudden obstruction,
he swerved to his right where he collided with an oncoming bus which had been
travelling only on parking lights.

The evidence from the defendants' driver (DW1) was that he had been travelling along
this same road going in the opposite direction when some distance past the UNZA
junction another motorist indicated to him that the water tank had become detached from
his truck. He looked back and saw the tank which was on a trailer with two wheels
moving along behind him. He stopped and parked his truck about one hundred and fifty
metres away near the Munali Service Station junction. When he looked back again he
saw that there had been a collision between a truck and a bus. He said, under cross-
examination, that he did not know what caused the collision between the two vehicles as
he was concentrating on parking his truck.

On the evidence before him the judge 'a guo' found that the accident was caused by the
presence of the water tank and its trailer on the road and further found that PW1 was in
no way negligent when he swerved to his right to avoid the sudden obstruction in front of
him.

Mr. Zulu, for the defendants, put forward lengthy written arguments and also made verbal
submissions. The gist of the first ground put forward was that the accident occurred not
because of the presence of the tank on the road, but because PW1 was negligent in failing
to stop or attempting to swerve to his left instead of swerving to the right as he did, when
PW1 must have known that there were oncoming vehicles. In support of this argument
Mr. Zulu referred to the evidence of DW1 who said that the plaintiff's driver had been
driving very fast at the time of the collision. This evidence was, however, rightly not
accepted by the trial court for the very cogent reason that DW1, on his own admission,
was concentrating on parking his vehicle after another motorist indicated to him that his
water tank had detached from his truck. In these circumstances the trial court was at

56
liberty on a balance of probabilities to reject that evidence and to prefer the evidence of
PW1.

Secondly, learned counsel for the defendants attacked the learned trial judge's findings on
this issue of credibility on the basis that PW'1 evidence was contradictory and his
evidence that the water tank was mobile at the time he saw it should not have been
accepted. This argument clearly cannot be sustained in view of PW1's evidence that
when he looked back he saw the water tank "moving on its own". In any event learned
counsel did concede that the presence of the water tank caused the collision between the
truck and the bus when PW1 swerved to his right to avoid the water tank which
obstructed his path. The learned trial judge found that PW1 was not negligent in his
driving as he swerved to avoid the tank and accepted that the reason PW1 swerved to his
right was because of the presence of another truck to his immediate left. These were
findings of fact with which this court cannot interfere unless it is otherwise clearly shown
that the trial judge had falling into error - (see Kenmuir v Hatting (1) We cannot find that
this was the case here. This ground of appeal must, therefore, fail.

The third ground of appeal advanced by Mr. Zulu was that the presence of the tank on the
road was an 'Act of God', and, not due to the negligence of the defendant who had taken
all precautions to secure the tank. We find this argument somewhat difficult to follow in
the circumstances of this case. Jowitt's Dictionary of English Law second edition Vol. 1
defines 'Act of God' as

"......An event which happens independently of human action such as death from
natural causes, storm, earthquake etc. which no human foresight or skill could
reasonably be expected to anticipate".

This means an Act of God is a catastrophe which could not be avoided by any precaution
whatsoever and must be distinguished from the defence of "inevitable accident which is
defined in Osborns' Concise Law Dictionary seventh edition as

"An accident the consequences of which were not intended and could not have been
foreseen by the exercise of reasonable care and skill.''

In the former defence the human element of reasonable care and skill is not contemplated
whereas in the latter the defence can only succeed if it is shown that reasonable care and
skill had been exercised to avoid the accident. In any event a reliance on any of these
defences places the burden of proof on the defendant and not on the plaintiff. They apply
for instance when the plaintiff has shown that the mere fact that the accident occurred
makes it more probable that the defendant was negligent, that is, when the doctrine of
"res ipsa loquitur" is invoked, a doctrine about which, Magnus, J., in Dutsch, Darling and
Banda v Zambia Engineering and Construction Company Limited (2) a case where the
defendant pleaded "inevitable accident" claiming that a broken bolt on the steering
column had caused the accident, said (quoting the authors of Clark and Lindsell on Torts
12th Edition):

57
 "Clark and Lindsell say that it is only a convenient label to apply to a set of
circumstances in which a plaintiff proves a case so as to call for a rebuttal from the
defendant without having to allege and prove any specific act or omission on the part of
the defendant. He merely proves a result, not any particular act or omission producing
the result."

The plaintiff need only prove that the accident happened and that it would probably not
have happened if the defendant did not bring the obstruction onto the road. The onus
then shifts to the defendant who must then rebut the probability. Magnus J. went on to
say:

"If that makes it more probable than not that the accident was caused by the
negligence of the defendant the doctrine 'res ipsa loquitaur is said to apply and the
plaintiff will be entitled to succeed unless the defendant by his evidence rebuts the
probability."

The authors of Clark Lindsell at para 796 also have this to say:

"The doctrine applies (1) when the thing that inflicted the damage was under the
sole management and control of the defendant, someone for whom he is responsible or
when he has a right to control; (2) the occurrence is such that it would not have happened
without negligence. If these two conditions are satisfied it follows on a balance of
probability, that the defendant, or the person for whom he is responsible, must have been
negligent. There is, however, a further negative condition: (3) there must be no evidence
as to why or how the occurrence took place. If there is, then appeal to 'res ipsa loquitur'
is inappropriate for the question for the defendant's negligence must be determined on
that evidence."

In the present case PW1 was suddenly confronted by an unlit and uncontrollable mobile
water tank in the middle of the road which caused him to swerve and collide with another
vehicle. There was at the time no apparent reason for the water tank to be on road and it
follows, as Magnus, J., said in Deutsch (2) above:

"....at that stage it certainly seems to me clear that the plaintiff is entitled to rely on the
doctine of 're ipsa loquitur.' ''

The defendant's only explanation was that the tank became detached from the truck. No
evidence was called to say why this was so. The onus to show that this was 'inevitable
accident' remained on the defendants throughout. DW1's simple statement that the "tank
got out cut off", no matter whether used in the context of "breaking off" or becoming
uncoupled from the truck, was totally inadequate to shift the burden back to plaintiffs.
The court cannot be expected to speculate as to what caused the break or the uncoupling.

Mr. Zulu's emphasis on the words "got out off" seems to us to be an attempt to say that a
latent defect in the chain or mechanism connecting the tank to the truck caused the chain
or mechanism to break. Even if latent defect was the intended defence the onus was still

58
on the defendant to show this by expert or other evidence. In Richie -v- Western Scottich
Motor Traction Co.,.... Ltd. (3) a case also referred to in deutsch Darling and Banda (2)
Mackay had this to say:

"If latent defect is the nature of the defence, then it is inherent in the word
'latent' that the defender prove by his evidence that the defect... was truly latent' - that is,
not discoverable by reasonable care."

To put it in the words Sachs, L.J., in Henderson v Jenkins (4) (a case also refrred to in
Deutsch by Magnus, J.).

"This is one of those relatively rare cases whee the incidence of burden of proof is of
importance not only at the opening of the trial but also at the end of the day. For the
ultimate decision falls to be made in the light of many facts, knowledge of which is solely
vested in the defendant....."

In the event we find that on the issue of liability the defendant's appeal cannot succed.

On the question of failure of the plaintiff to plead negligence we agree with learned
counsel for the defence that it is important for litigants to follow the rules of pleadings
and in certain cases failure to do so may prove fatal to one's case. Mr. Nyembele for the
plaintiffs concedes this but argues that when evidence on negligence was being led by the
plaintiff, at first instance the defendants should have objected and that once the evidence
was let in the judge was not precluded from considering that evidence. To support this
argument Mr. Nyembele referred us to the case of Jere -v- Shamayuwa and another (5)
where this court held:

"Where a defence not pleaded is let in by evidence and not objected to by the
other side, the court is not precluded from considering it.''

We are in agreement with Mr. Nyembele for even in the face of these defective peadings
the issues here were never in doubt. However, this does not mean that we condone in
anyway shoddy and incomplete pleadings. For the above rasons this ground of appeal
must also fail.

Lastly, Mr. Zulu, argued that the learned trial judge erred in law and fact in awarding
damages of K360,000 for loss of business when this was not specifically pleaded and no
details of the loss were given to enable the trial court to consider what loss if any was
suffered by the plaintiff. This argument is not altogether accurate. At paragraphs 7 and 8
of the statement of claim the plaintiff pleaded as follows:

"7. The plaintiff now claims the sum of K95,000 being the full value of the truck No.
AAC 6231, K3,000 being the cost of damage caused to the plaintiff's trailer No. AAB
3547T, K1500 being costs of damage to the diesel, k600 being cost of damage to the
tarpauline and rope, K1,011 being towing charges and K300 being the cost of removing
cargo to another vehicle. The total cost being K101,411.00.

59
8. The plaintiff further claims for loss of business from the time of accident to date of
settlement..."

The plaintiffs called a Mr. Agit Jashbai patel (PW2) the Managing Director who apart
from giving evidence as to the damage said:

"I also claim for loss of business up to the time we replaced the truck, we were grossing
about K10,000 per month."

This evidence was in no way challenged by the defence. The only inference that could
reasonably be drawn from the defence failure to do so was that the defence accepted the
plaintiffs' estimate of the loss and in the circumstances this court is reluctant to interfere.
The result is that the appeal is dismissed with costs to the plaintiffs.

Appeal dismissed

60
ELIAS KUNDIONA v THE PEOPLE (1993) S.J. 49 (S.C.)

SUPREME COURT
NGULUBE,C.J., BWEUPE, D.C.J., AND MUZYAMBA, J.S.
5TH OCTOBER, AND 2ND DECEMBER, 1993
S.C.Z. JUDGMENT NO. 14 OF 1993

Flynote

Criminal Law - Contempt of Court - General principles.

Criminal Law - Duress - When defence of duress is established - Whether the threat has
to be continuing.
Evidence - Competence and compellability - The Head of State.

Headnote

The appellant was convicted of two counts of contempt arising out of his failure to appear
before court without reasonable excuse and also his filing an affidavit in which he
accused the learned judge in the court below of conspiring with three others to convict
Kambarange Kaunda, the son of former president Dr. Kenneth Kaunda in order to
embarrass the latter. The appellant appealed against both conviction and sentence.

Held:

(i) The learned trial judge did not act out with R.S.C. Order 52 as read with the
relevant section of the Penal Code when he continued the proceedings which
had been promptly initiated and would have long been disposed of but for the
appellant’s own action.

(ii) An aggrieved judge in summary contempt should show restraint and maintain
equanimity; a Judge subjected to contempt should not be prosecutor and judge
in his own case.

(iii) A person may be regarded as having acted under duress when he acts solely as
the result of threats of death or serious injury to himself or another which
operates on his mind at the time of his act.

(iv) A serving President, while no doubt a competent witness, could not be coerced
by criminal process or sanction if he declined to cooperate because the
constitution grants immunity.

Cases referred to:

(1) Zulu v The People S.C.Z. Judgment No. 7 of 1991.
(2) Fraser v R. Meredith v R. (1985) L.R.C. (Crim.) 732
(3) Balaugh v Crown Court of St. Albans (1974) 3ALL E.R. 283
(4) Gusta and Another v The People S.C.Z. Judgment No. 29 of 1988

61
(5) Nguila v The Queen (1963-64) Z.N.R. 14
(6) R v Hoowe and others (1987) A.C. 417
(7) R v Graham (1981) I All E.R. 801
(8) DPP for Northern Ireland v Lynch (1975) A.C. 653

For the Appellant: Mr. E.J. Shamwana, S.C., of Shamwana and Company with him
Mr. Hakasenke.
For the Respondent: Mr. D.K. Kasote, State Advocate.
________________________________________
Judgment

NGULUBE,C.J.: delivered the Judgment of the Court.

The appellant was sentenced to undergo three months imprisonment with hard labour on
one count of contempt and six months imprisonment with hard labour on a second count
of contempt of court. The sentences were concurrent, making an effective total of six
months , four of which were suspended on the usual terms. The effective sentence was to
be served with effect from the date of conviction. The charge of contempt of court on the
first count related to the appellant’s failure without good cause to appear before the
learned trial judge in response to a summons to the accused issued against him which he
was cited for contempt, the subject of the second count. The charge on the second count
related to a scandalous affidavit attributed to him and instituted in the matter of The
People v Kambarange Kaunda the burden of which was to allege that the learned trial
judge and three others had entered into a pact to be partial and biased in favour of MMD
the now ruling party against the then ruling party and Government and that the learned
trial judge had assured the MMD in advance that he would convict Kambarange Kaunda
of murder in order to embarrass President Kaunda. The appellant was proceeded against
under Order 52 R.S.C. as read with s.116(3) of the Penal Code and this appeal is against
the conviction and sentence.

The facts emerging were that the learned trial judge was presiding over the trial of
Kambarange Kaunda when towards the tail end of that trial, counsel for the defence, Mr.
S.S. Zulu, moved the court to abort the trial on grounds of alleged bias and partiality and
produced in support a document purporting to be an affidavit sworn by the appellant.
The advocate was cited for contempt, tried and convicted and the details of his case
sufficiently appear in Zulu v The people (1) . The appellant was to be tried as the second
accused with the advocate but when he was served with a Summons to accused, he did
not come to court on 14th August, 1991, but was hastily flown out of the country with his
family on arrangements allegedly made by the former President and others. A bench
warrant was issued and it was not until 19th October, 1992, when it was executed and the
contempt proceedings heard. The court conducted an elaborate hearing involving eight
witnesses for the prosecution and four for the defence and thereafter delivered a lengthy
judgment in which the appellant was found guilty.

The position of the appellant, who had no visible connection with the case involving
Kambarange Kaunda, was that, in relation to the first count, he was misled into believing

62
that the summons to the accused which cited him for contempt was a summons to a
witness and he could choose to attend court or not to attend court since he was not
involved in the criminal trial then in progress. In relation to the second court, his position
was that he was prevailed upon, under threats and compulsion by or on behalf of the
former President and others, as well as on promises of a favour in the matter of his
disputed citizenship, to collaborate in a mischievous scheme to discredit four judges,
including the learned trial judge. He understood his collaboration in the affidavit which
was, according to him, a fabrication the advocate and others, to have been to facilitate
the setting up of a tribunal, a step taken only for the purpose of inquiring into the question
of removing a judge from office for inability or for misconduct. Although the document
was headed in the matter of the pending criminal trial, the appellant’s position was that he
did not expect it to be produced in that trial.

Before we come to the grounds of appeal and the arguments which were argued before
us on both sides, we consider it appropriate to say a few words on the subject of contempt
generally and to make some preliminary observations on this case. It was not in dispute
that wilful disobedience to a summons to an accused to attend court is a contempt. It was
also clearly a contempt (subject to the arguments based on duress which we will consider
shortly) to attack the personal character of the learned trial judge by alleging bias and
lack of impartiality, and to such to abort a trial in progress on such grounds. Such acts
are, prima facie, calculated to bring a court or a judge into contempt, or to lower his
authority, or to interfere with the due course of justice. It should be borne in mind, as
the learned authors of Halsbury’s Laws of England, 4th Edition, Vol.9, observe in
paragraph 27, that contempts of this kind are punished not for the purpose of protecting
either the court as a whole or the individual judges of the court from a repetition of the
attack, but of protecting the public, and especially those who either voluntarily or by
compulsion are subject to the jurisdiction of the court, from the mischief they will incur if
the authority of the tribunal is undermined or impaired. It would not be a legitimate
object of punishment for an aggrieved judge to seek solely to vindicate his personal
honour or sate his wrath. It is the public which must be protected against loss of
confidence and respect for the courts engendered by acts calculated to undermine
authority or to expose the courts to contempt. It is also necessary to bear in mind, as was
observed in the Australian cases of Frazer v R., Meredith v R. that the summary power to
punish for contempt is part of the inherent jurisdiction of the court. It is an extraordinary
power imposing an unusual concatenation of roles upon the judge, resulting in special
responsibilities . This is precisely the reason why cases like Balauch v Crown Court of
St. Albans (3) Counsel that it should be “exercised with scrupulous care, and only when
the case is clear and beyond reasonable doubt” adding that “a judge should act of his own
motion only when it is urgent and imperative to act immediately. In all other cases he
should not take it on himself to move. He should leave it to the Attorney-General or to
the party aggrieved to make a motion in accordance with the Rules in RSC order 52. The
reason is so that he should not appear to be both prosecutor and judges for that is a role
which does not become him well”. The requirements of due process and natural justice
also demand that a contemnor be given a hearing. In an obvious case, the proceedings
are swift and punishment instant, in keeping with the summary character of this
extraordinary jurisdiction. It was in this light that this court in the related Zulu case did

63
not comment favourably on the holding of an elaborate and protracted hearing which
served only to accentuate the uncustomary role of a judge as prosecutor at the same time.
However, while this court in the Zulu (1) case held that the holding of such a trial was
unnecessary in summary proceedings, the conviction was nonetheless upheld on its own
merit. Neither the statutes nor the Rules have provided how the summary trial for
contempt should proceed and it will therefore depend on what actually did take place in
each case whether there was a fair hearing or not. The circumstances of each case will
also suggest whether the aggrieved judge properly took cognizance of the offence or if it
should have been referred for prosecution before another court having regard to the need
to balance between the undesirability of a judge possibly testifying and being cross-
examined as a witness before another court and the desirability of swift action in a proper
case.

This brings us to the grounds of appeal in this case. The first ground alleged error on the
part of the learned trial judge in deciding to hear the case against the appellant. The first
limb of the argument was to the effect that it was wrong for the aggrieved judge to hear
the case himself after the lapse of a period of over one year from 14th August,1991, to
20rh October,1992. It was submitted that the learned trail judge acted out with s.116 of
the Penal Code as read with R.S.C. Order 52 because he did not heed the guidelines in
Gusta and Another v The people (4) and S.S Zulu v The People (1) . The argument was
that as the learned trial judge did not deal with the case on the same day of offences under
s.116 (2), he should have reported the matter to the Director of Public Prosecutions as
was suggested in Gusta (4). The postea in Gusta (4) is significant and attention should be
paid to it. This court actually revised its original criticism of the proceedings and held
that they were not ultra vires if grounded in RSC Order 52. The case of ZULU (1) was
said to be distinguishable because the court took action immediately and remanded the
contemnor in custody so that the case was adjourned merely for an enquiry, as opposed to
the proceedings here which took place after a period of more than year. It was argued
that, even if RSC Order 52 did not specify a time limit, the caution in the Balough (3)
case should have been heeded that action ought to be taken by a judge of his own motion
only where it was urgent and imperative to act immediately. It was submitted that the
appellant had not even committed contempt in the face of the court.

We have considered the arguments under this limb and we do not agree that a different
attitude should be adopted from that in the Zulu (1) case. The events which moved the
learned trial judge occurred in open court when Mr. Zulu tried to stop the criminal case in
progress. It is trite that the principles governing principal offenders apply equally to
criminal contempt so that those who have, for instance, counseled, procured, sided or
abetted the commission of the offence are equally liable and can not escape liability
simply because they were not physically present at the scene. Sight cannot be lost of the
fact that the learned trial judge took action immediately and issued a summons to accused
followed by a bench warrant returnable before himself. The appellant left the jurisdiction
and we can not see that a contemnor can oust the jurisdiction of an aggrieved judge at
derive any advantage or benefit by going into hiding and thereby making it impossible to
be dealt with forthwith. Learned State Counsel referred to the lapse of time as affording
the aggrieved judge time for passion to cool off so that some other court should deal with

64
the impertinence offered. As we have already indicated, the punishment of contempt can
not be for the gratification of a judge in some sort of fit of passion. On principle,
therefore, a case can not lose the immediacy or urgency originally attaching to it where
was imperative to take swift action such that a judge should not proceed with it himself
when it is the offender himself who by his own act occasioned the delay which he later
seeks to rely upon to criticize the proceedings against him.

As far as we are able to recollect, neither a bench warrant issued nor a case already in
hand of a judge can expire automatically by lapse of time. We are satisfied that the lapse
of time here should make no difference and that all the criticism under discussion should
attract the same response as we gave in the Zulu case, a response which it is here
unnecessary to repeat. We are satisfied that the learned trial judge did not act out with
R.S.C. Order 52 as read with relevant section of the Penal Code when, in essence, all that
he did was to continue the proceedings which had been promptly initiated and would
have long been disposed of but for the appellant’s own action. We, therefore, do not
uphold the arguments under this limb.

The second argument on the first ground of appeal was that the appellant was the victim
of an unfair trial because the learned trial judge was not impartial and independent.
Admittedly a judge reacting to an attack upon himself necessarily assumes many roles in
the proceedings against a contemnor. This is what makes summary contempt
extraordinary and it is an unavoidable collorary that the tribunal is not completely
impartial or independent. This is the precise reason why circumspection is urged, but a
conviction, properly recorded, can not be criticised on the ground that the victim of a
serious contempt has himself summarily dealt with the contemnor. Another submission
was that the trial was unfair because the case proceeded as an ordinary criminal trial and
other persons implicated by the appellant were not similarly cited for the contempt. As
we pointed out in the Zulu 9(1) case, an elaborate trial is unnecessary in summary
proceedings but the fact that one was conducted does not ipso iacto invalidate the
proceedings. We have already made the observation that no specific procedure is
prescribed for summary contempt and the important point will be the observance of the
basic principles of fairness, such as affording the accused the right to be heard in his own
behalf. The argument concerning the non punishment in a similar manner of persons
implicated by the appellant was, we consider, expletive. We can think of no authority,
and none was cited, for a proposition that a trial will be unfair if all the possible accused
persons are not brought before the court. This limb is also not upheld.

The second ground of appeal alleged error on the part of the learned trial judge in
convicting the appellant. It was submitted that the two counts were not proved against
the appellant to the required standard, the argument being that the prosecution witnesses
did not establish the ingredients of the offences charged with the result that the learned
trial judge relied on the defence story. On our considered opinion, there was ample
evidence on the first count that the appellant was duly served with a summons to accused
and the initial story of the appellant that the officers who served the document had misled
him into believing that he had the option to respond or to ignore it was, quite properly,
abandoned by the appellant. His final story was that he was virtually in the custody of

65
officials from State House and was not free to come to court , Contrary to Learned State
Counsel’s submissions, the contempt could only be expunged by the appellant offering a
reasonable excuse so that it is not competent to argue that the court should not have
examined the defence story. The burden was on the appellant to explain his failure to
come to court when evidence had established service of the summons. With regard to his
final story, it was clear that he chose not to come to court preferring instead to participate
in arrangements for his own departure from the country. We will return to the question
whether he so acted under duress in a moment.

In relation to the second count, we note that the learned trial judge had considered the
allegation that the appellant signed the affidavit which was authored by others and which
had already been signed by a Commissioner for Oaths so that he was not called upon to
actually swear it before such commissioner. On the evidence, including that of the
appellant himself which can only be regarded as the most favourable from his point of
view, the learned trial judge found that it was enough that he appellant had knowingly
appended his signature to the document whose contents he was aware of. The learned
trial judge was on firm ground and we are satisfied that, subject to the question of duress,
the ingredients of the second count were well and truly established.

We now come to the third ground of appeal which alleged error in law and in fact on the
part of the learned trial judge when he dismissed the defence of compulsion, or as it is
now more commonly referred to duress or coercion. This defence is provided for under
S. 16 of the Penal Code. As amended by Act No. 3 25 of 1990 which repealed and
replaced the old section, S.16 now reads:-

“16 (1) Except as provided in this section, a person shall not be guilty of an
offence if he does or omits to do any act under duress or coercion.

(2) For the purpose of this section a person shall be regarded as having done or
omitted to do any act under duress if he was induced to do or omit to do the act by any
threat of death or grievous harm to himself or another and if at the time when he did or
omitted to do the act he believed (whether or not on reasonable grounds).

(a) That the harm threatened was death or grievous injury;

(b) That the threat would be carried out:

(i) Immediately or
(ii) Before he could have any real opportunity to seek official protection,
(iii) If he did not do or omit to do the act in question and

(c) That there was no way of avoiding or preventing the harm threatened

(3) In this section “official protection” means the protection of the police or any
authority managing any prison or other custodial institution, or any other authority
concerned with the maintenance of law and order.”

66
Before the amendment of 1990, s.16 of Penal Code read:

“S. 16. A person is not criminally responsible for an offence if it is

committed by two or more offenders, and if the act is done or omitted only because
during the whole of the time in which it is being done or omitted to do the act by threats
on the part of the other offender or offenders instantly to kill him or do him grievous
bodily harm if he refuses, but threats of future injury do not excuse any offence.”

We note that, no doubt by an oversight, the learned trial judge and Counsel on both sides
quoted the old section 16 and proceeded to deal with the defence of compulsion on that
basis. This was also the basis of the arguments before us. In dealing with this defence
the learned trial judge had this to say at P. 96 of the record :

“The evidence I received in this case did not show that either the former
President, or Mr. Nyirenda or Mr. Kamina or indeed Mr. Sebastian Zulu threatened the
accused person with instant death or grievous bodily harm if he did not cooperate with
them. The security officers who accompanied him to Mr. Zulu’s office were meant to
protect and the document he was signing and not to threaten him) and this is how the
accused person understood their presence at the time. But after more than a year of
thinking what to come and tell this court to strengthen his case that he was an unwilling
participant, he came up with this story that the presence of those officers frightened him.
What Mr. Zulu told him in his office on the 12th of August, was clearly understood by
the accused person as well as this court as meaning that if he did not cooperate with the
former President he may disappear without trace at some future time and not there and
then.”

It seems to us that the new section introduced a number of new elements which should
have been taken into account. It is no longer a requirement that the offender pleading
duress was jointly engaged in committing an offence with the person or persons who
throughout the duration of the commission of that offence compelled him to participate
by threats of immediate serious physical harm or death. That was the state of the law
when Nguila v The Queen was decided in which the defence was not upheld when the
threats were not of immediate danger to life or limb but consisted of threats to burn the
reluctant offenders’ own houses if they did not participate in a politically-inspired orgy of
arson against opponents houses. Learned Counsel for the state Mr. Kasote has cited this
case to support his submission that there was no immediate threat and that in any case the
appellant was ambivalence in his explanation, that is to say, whether he acted out of fear
for his life or the prospect of reward in the matter of resolving his disputed citizenship. It
seems to us that under the new section, it is sufficient for a reluctant offender to show that
he believed (apparently even on grounds which may not be regarded as reasonable when
considered objectively) the harm threatened was death or grievous injury. Next, he had
to show that he believed the threat would be carried out immediately or before he could
have any real opportunity to seek official protection, as defined, and there was no way of
avoiding or preventing the harm threatened. The prosecution would have the burden of
disproving these. It is very doubtful whether the new section can be regarded as having
clarified the law surrounding the defence of duress. In the normal course, duress is a

67
defence to all crimes but would hardly ever be available to a person charged with
murder: See R v Howe and others (6) which has extensive discussions on duress. A
person may be regarded as having acted under duress when he acts solely as the result of
threats of death or serious injury to himself or another which operates on his mind at the
time of his act. Previously, the threat had to be of immediate death or injury but the new
section suggests that an immediate threat of future death or injury may have to be taken
into account. If the Defendant is made to do the act before he has had any real
opportunity to seek protection. The court now has to consider also whether the
Defendant could have reasonably avoided doing the act such as by running away or by
seeking police protection. Whatever may be said about the new section, it seems to us
that it still supports the view that the test of whether a Defendant was compelled to act as
he did is still objective , not subjective. In this regard, we respectfully concur with the
sentiments in R v Howe (6) above which applied dicta from R v Graham(7) to the effect
that a Defendant is required to have the steadfastness reasonably to be expected of the
ordinary citizen in his situation.

Turning to our present case, the learned trail judge showed in the passage which we have
quoted that he accepted that the appellant’s will was overborne but dismissed the defence
on the old formula that future threats did not avail. There was thus no discussion of the
new alternative situations beside immediate harm, 30 such as the absence or presence of
any real opportunity to seek protection or to avoid the harm by not doing the actions
complained of which in this case were the signing of the offending document and the
failure to come to court . To the extent that only the old provision was discussed, there
was a misdirection and the question arises whether we can apply the provisio to Section
15 (1) of Cap.52. It should be borne in mind, as Lord Kilbrandon stated in DPP for
Northern Ireland v Lynch (8) that:

''The decision of the threatened man whose constancy is overborne so that he

yields to the threat, is a calculated decision to do what he knows to be wrong ,and is
therefore that of a man with , perhaps to some exceptionally limited extent, ‘guilty
mind’. But he is at the same time a man whose mind is less guilty than is his who acts as
a he does but under no such constraint".

It should also be borne in mind that the new section envisages, paraphrasing the words
of Lord Griffiths in R v Howe (6) (above) when he was commenting on a draft bill very
similar to our new S.16, duress is supposed to be a complete defence in certain
circumstances and the law appears to have introduced it as a merciful concession in
human frailty. The offender is to be taken as having acted under duress if he was induced
to take the action by any threat of harm to himself or another and at the time he took it he
believed (whether or not on reasonable grounds):

(a) That the harm threatened was death or serious personal injury;
(b) That the threat would be carried out immediately if he did not take the action in
question or, if not immediately, before he could have any real opportunity of seeking
official protection; and

68
(c) That there was no other way of avoiding or preventing the harm threatened,
provided, however, that in all the circumstances of the case he could not reasonably have
been expected to resist the threat.

The new section 16 does not say what is to be the position if any official protection which
might have been available in the circumstances would or might not have been effective to
prevent the harm threatened and this issues is important in this appeal because of the
allegations, accepted by the learned trial judge, that the duress was coming from high up,
including those who were supposed to provide the official protection. Can it be said that
the appellant had the relevant opportunity to seek protection or to avoid or prevent the
harm, bearing in mind that the relevant time to be taken into account is the time when he
the action amounting to the commission of the offences? The court below did not discuss
the application of the new section and the prosecution did not address itself to navigating
the factors now relevant to duress.

However, it is quite clear from the facts accepted in the court below that duress came
only from the Executive, Office of the President (Special Division) and Police at State
House and not the Army, National Service, Prisons and courts who are also, in the words
of Section 16 (3) Supra, concerned with the maintenance of law and order. On the facts
of this case we cannot say that the appellant had no real opportunity to seek official
protection from either the Army, National Service, Prisons or courts. He had such an
opportunity but did not seek protection because, and this is quite obvious from the
evidence on the record, he was, from the inception, a willing participant in the whole
scheme to discredit the four Judges and that he stood to gain had the scheme succeeded
by being granted Zambian Citizenship.

We are quite satisfied therefore that had the learned trail judge considered the provisions
of the new Section 16 he would have come to the same conclusion as he did. We would
therefore apply provisio to Section 15 (1) of Cap. 52 and dismiss the appeal against
conviction.

We also find it unnecessary for a decision in this case to discuss the ground of appeal
concerning the compellability of the Head of State as a witness. All we can say, obiter,
is that a serving President while no doubt a competent witness could not be coerced by
criminal process or sanction if he declined to cooperate because the constitution grants
immunity.

With regard to the appeal against the effective sentence, we note that, although the
appellant engaged in conduct which was mischievous in the extreme and a reprehensible
contempt , yet there were factors which ought to have been taken into account and
which have been urged before us. As Mr. Shamwana pointed out, the appellant was in
custody for two solid months from 19th October, 1992 to 18th December 1992 pending
trial before he was released on bail .

It seems to us that there were no good reasons for with-holding credit for this period.
Instead, the learned trial judge preferred to criticise in unnecessarily uncomplimentary

69
terms the sentence which this court substituted for his own in the related case involving
the practitioner. The principles of stare decisis and binding superior predcedent so
necessary in our hierachical system of justice received short shrift. It is wrong in
principle and conducive of discord, uncertainty and inconsistency for lower court to
adopt such a stance towards a senior court. The appellant was also a first offender,
another factor urged before us. We emphasize: An aggrieved judge in summary
contempt should try to show restraint and to maintain equanimity. For the reasons
outlined, we are satisfied that the effective sentence should be adjusted. The sentence
were concurrent, making a total of six months, four of which were suspended. We order
and direct that credit be given for the two months already spent in custody during trial;
which means the appellant has already served the two months he was required to spend in
prison.. The appeal against sentence is allowed to the extent indicated.

Appeal partly allowed

70
HASTINGS OBRIAN GONDWE v B. P. ZAMBIA LIMITED (1997) S.J. 1 (S.C.)

SUPREME COURT
M M.W S. NGULUBE, C.J. BWEUPE, D.C.J. AND SAKALA J.S.
14TH JANUARY AND 3RD FEBRUARY, 1997.
(S.C.Z. JUDGMENT NO. 1 OF 1997)

Flynote

Employment law - Distinction between benefits enjoyed as an incident of employment

and benefits enjoyed after certain period of employment or at end of employment - The
former terminate with employment while latter can continue after termination of
employment.

Headnote

The appellant had been employed by the respondent. He took early retirement. As part of
the negotiations relating to his retirement the respondent had agreed to sell the car which
he used during his employment to him. There was a dispute about the value of the car.
The respondent then ordered the appellant to return to work. When he failed to do so he
was summarily dismissed. The appellant had instituted action against the respondent and
applied for an interlocutory injunction restraining the respondent from claiming
repossession of the car pending the outcome of his main action. The application having
been dismissed the appellant appealed.

Held:

(i) Where the claim is for reinstatement the question of whether or not the
ultimate decision of a trial court will result in the reinstatement of an employee
is of vital importance in determining whether an employee will be entitled to an
interlocutory injunction. Hence where there is nothing on the facts to suggest
that a case is a rare one where reinstatement would likely to be ordered, the
court has held that the case was not an appropriate one for the grant of an
interlocutory injunction restraining the employer from repossessing the house
and vehicle.

Cases referred to:

1. Preston v Luck [1884] 27 C.D 497
2. Shell and BP (Z) v Conidaris and Others (1975) Z.R. 174
3. Zambia Railways v Simumba [1995] S.C.Z. Judgment No. 2
4. Zambia State Insurance Corporation Ltd v Mulikelela [1990] S.C.Z. Judgment
No. 9

For the Appellant: Mr B.C. Willombe of MMW & Company.

For the Respondent: Mr, E.J. Shamwana of Shamwana & Company
________________________________________

71
Judgment

SAKALA, J.S., delivered for Judgmett of the Court.

On 14th January 1997 when we heard this appeal, We allowed the appeal. We granted
the interlocutory injunction to the appellant pending the trial of the main action on
conditions that the appellant parks the vehicle and does not use the same and on his
undertaking to make good should it transpire after the trial of the main action that the
injunction ought not to have been given. We further indicated at that time that in our
judgment we shall distinguish between the perquisites, popularly called perks., which are
an incident of employment and co-extensive therewith; and conditions and benefits, such
as the purchase of the employer’s items used by the employee, on favourable terms, after
a certain period or at the end of the employment, which is quite another matter. We said
then that we would give our reasons for our decision in a written judgment on a date to
be notified. We now give those reasons.

This is an appeal against a ruling of the High Court refusing to grant the appellant an
interim injunction pending the trial of the main action. The facts of the case in so far as
they are relevant to this appeal are that, on 5th March, 1968, the appellant was employed
by the respondent as a Sales Trainee. He rose to various senior positions within the
respondent company. In the course of his employment he was entitled to a company
house and a personal-to-holder vehicle. On 12th September, 1994, after some protracted
correspondence between the appellant and the Managing Director of the respondent
company, the appellant applied for early retirement effective on same date of the letter.
In his application for early retirement, the appellant, among other things, requested to be
sold the house he was occupying and the company car which was allocated to him on a
personal-to-holder basis. On 31st October, 1994, after further protracted correspondence,
the respondent’s Managing Director wrote the appellant informing him that his offer to
go on early retirement had finally been accepted to be effective from the date of the letter.
The Managing Director set out, in detail, the terms upon which the appellant was being
retired. The letter showed among other things , that a sum of K21,855,344.00 had been
deducted from the appellant’s terminal benefits as the purchase price of the vehicle now
in issue.

It was common cause that the appellant disputed the price at which the vehicle was
pegged. The appellant made counter offers to the Managing Director’s offers. These
were rejected. Instead the Managing Director advised the appellant to report for work.
The appellant refused this new offer of requesting him to report for work and insisted to
proceed on early retirement as already accepted by the company on the terms and
conditions as calculated by himself. It was also common cause that the appellant never
reported back for work. Consequently, on 12th May,1995, the respondent company wrote
the appellant, through his lawyers, informing him that he had been summarily dismissed.
In the letter of summary dismissal the appellant was, among other things, requested to
vacate the house and to return the personal-to-holder car.

72
On 22nd May,1995, the appellant commenced an action by way of an originating Notice
of Motion seeking several declarations among which was a declaration for an order
declaring that he was entitled to the purchase of the house and of the car registration No.
AAL 9132 which was allocated to him on a personal-to-holder basis. On the same date
the appellant applied for an interim injunction against the respondent to restrain them
from claiming possession of the house he was occupying and the company car. The
appellant obtained the interim order pending the inter-parte hearing.

In his ruling after the inter-parte hearing the learned trial judge accepted that on the facts
as presented before him there was a serious question to be tried at the trial and accepted
the principles set out in the case of Preston v Luck (1) where Lord justice Cotton at Page
506 had this to say:

“Of course, in order to entitle the Plaintiffs to an interlocutory injunction, though the
court is not called upon to decide finally on the right of the parties, it is necessary that
the Court should be satisfied that there is a serious question to be tried at the hearing, and
that on the facts before it there is a probability that the Plaintiffs are entitled to relief.”

The trial judge also accepted the principles in Shell and BP v Conidaris and others (2)
where this Court stated:

“A Court will not generally grant an interlocutory injunction unless the right to
relief is clear and unless the injunction is necessary to protect the Plaintiff from
irreparable injury; mere inconvenience is not enough. Irreparable injury means injury
which is substantial and cannot be adequately remedied or atoned for by damages, not
injury which cannot be possibly repaired.”

The learned trial judge properly observed that the question of the appellant’s entitlement
to exercise his option for an early retirement will have a bearing on the issue of whether
the purported summary dismissal was null and void at the trial. The court noted that at
that juncture the issue was whether the case was a proper one to grant an interim
injunction. The learned trial Judge then stated:

“I am quite mindful of the fact that the company house and the vehicle Nissan
Patrol were enjoyed by the Plaintiff only and purely as an incidence of his employment
and the Plaintiff has no rights in them other than by reason of his employment which has
now been terminated. There is no doubt that the house and the motor vehicle are the
Defendant’s property. That being the case, the Plaintiff cannot continue to enjoy these
facilities when his employment with the Defendant has ceased unless he can show this
Court that once these facilities have been withdrawn, the Plaintiff will suffer irreparable
injury which can never be adequately remedied or atoned for damages.”

After alluding to the affidavit of the appellant where he deposed of the inconvenience and
the heavy suffering in form of money, the court noted that these are not the grounds upon
which interim injunctions are granted as they can be adequately compensated for by
damages. The learned trial judge felt that it was going to be unfair to the respondent for

73
the appellant to continue occupying the company house and using the company vehicle
when he ceased working for the respondent at the time he purported to retire. Based on
this reasoning the court found that the appellant’s case was not an appropriate one for the
grant of an interlocutory injunction. The appellant’s application was refused with costs.
Hence the present appeal to this court.

At the hearing of the appeal the court was informed that the issue of the house had been
settled by consent. The arguments in the appeal were therefore centered on the grounds
relating the issue of the motor vehicle.

Both learned counsel filed written heads of argument which we have taken into
consideration in this judgment. The gist of Mr. Willombe ‘s submissions is that when the
appellant had opted for early retirement, which had been accepted, he had purchased the
personal-to-holder vehicle in issue as evidenced by a deduction of a substantial sum of
money from his terminal benefits. Mr. Willombe’s contention was that, the issue of the
vehicle arose only when he queried the price of the vehicle as being on the higher side,
otherwise it was never an issue. Mr. Willombe urged the court not to disturb the status
quo of the vehicle.

In reply Mr. Shamwana contended that the learned trial judge was correct to find that it
would be unfair for the appellant to continue to use the respondent’s vehicle when his
employment had been terminated. Mr. Shamwana submitted that it is an accepted
principle of law that if one enjoyed a vehicle as a result of his employment, he ceases to
enjoy the same upon the termination of his employment. He pointed out that his principle
was affirmed by this court in the case of Zambia Railways v Simumba (3).

We have very carefully examined the facts as presented by this appeal and the ruling of
the learned trial judge. We are satisfied that the learned trial judge’s approach and
analysis of the principles governing the grant of injunctions cannot be faulted. Indeed the
case raises very important issues to be determined at the trial among the issues to be
decided upon on the facts, in our view, will be whether summary dismissal of an
employee by an employer is competent after the employer has already accepted that
employee’s application for early retirement. But this appeal also raises a very important
issue of whether there is a distinction between perquisites, which are an incident of
employment and enjoyed only and purely as an incidence of employment , and cease on
termination of that employment; and the conditions and benefits, such as the purchase of
the employer ‘s vehicle and other items used by the employee, on favourable terms, after
using those items for a certain period or at the end of the employment. The issue has not
been specifically argued . However, in cases where the claim is for reinstatement this
court has accepted that the question of whether or not the ultimate decision of a trial court
would result in the reinstatement of the employee was of vital importance in
determining whether the employee would be entitled to an interlocutory injunction.
Hence where there is nothing on the facts to suggest that a case is a rare one where
reinstatement would be likely to be ordered this court has held that the case was not an
appropriate one for the grant of an interlocutory injunction restraining the employer from
repossessing the house and the vehicle(see the case of Zambia State Insurance

74
Corporation Limited v Mulikelela (4) and Zambia Railways Limited v Oswell Simumba
(3).

These were cases where the employees claimed reinstatement after their employment was
terminated. They enjoyed the accommodation and the vehicles as an incidence of their
employment. This court refused to grant interlocutory injunctions in relation to the
accommodation and the vehicles because reinstatement being a rare remedy, the court, on
the facts before it, found that there was no probability that the appellants would be
entitled to the remedy of reinstatement. In considering the appeal before us we take note
that the issue of whether an employee whose application for early retirement has been
accepted can be subsequently be summarily dismissed will be of vital importance to be
decided upon by the trial court. We accept that the case is not one of claiming for
reinstatement. On the other hand, on the facts before us and put before the Judge below,
but without prejudging the issue, this appears to us to be an exceptional case where a
probability exists that the appellant would be entitled to the relief he is seeking. But in
deciding whether this is an appropriate case for granting an interlocutory injunction we
have taken note of the other facts on record that the appellant’s conditions of service
entitled him to a personal –to-holder car replaceable every four years with an option to
purchase it. We have also taken keen note of the fact that in the letter accepting the
appellant’s application for early retirement, the respondent’s Managing Director wrote as
follows:

“ It has been agreed to have your current personal-to-holder vehicle (Nissan Patrol
Registration No. AAL 9132) transferred to your ownership at a value of
K21,855,344.00.''

The appellant had retired. We cannot accept that this was a mere gratuitous offer. In our
view, this reinforces the argument that the vehicle in issue was not only an incident of
employment but a benefit to be enjoyed even after termination of employment as well.
There is also evidence on record that in the course of his employment the appellant was
authorised to purchase a vehicle under the senior staff personal-to-holder car scheme in
accordance with his conditions of service. We take judicial notice of the common
practice in most parastatal companies of the existence of conditions of service where
employees have been allowed to purchase personal-to-holder cars either after a certain
period or upon the employee’s death or retirement. We are satisfied that on the facts
before us the appellant enjoyed conditions and benefits, such as the purchase of the
respondent’s vehicle used by him, on favourable terms, after a certain period or at the end
of his employment. This is the distinction between the perquisites enjoyed as an incident
of employment and conditions and benefits enjoyed after a certain period while in
employment or at the end of that employment. All in all we are satisfied that the
competence of summary dismissal of an employee after his retirement has been accepted,
is a question of vital importance to be tried at the hearing. We are further satisfied that
on the facts before us and those presented before the trial judge there is a probability that
the appellant may be entitled to the relief he is seeking.

75
For the foregoing reasons we allowed the appeal and granted the interlocutory injunction
in relation to the vehicle.

Appeal Allowed

76
CHETANKUMAR SHANTKAL PAREKH vTHE PEOPLE (1995) S.J. (S.C.)

SUPREME COURT
NGULUBE, C.J., SAKALA AND CHAILA, JJ.S.
16TH MAY AND 10TH JULY, 1995.
S.C.Z. JUDGMENT NO. 11 OF 1995

Flynote

Bail - Cognisable offence - s.23(1) of Criminal Procedure Code - Article 94(5) of the
Constitution - Constitutional bail

Headnote

The appellant appeared before the subordinate court on a charge of unlawful possession
of drugs, contrary to Section 8 of the Narcotic Drugs and Psychotropic Substances Act,
(no. 37 of 1993). the learned trial magistrate refused to grant bail and, in terms of the
Criminal Procedure Code and the supervisoory jurisdiction of the High Court under that
law and under Article 94(5) of the Constitution, the appellant renewed his application for
bail before a High Court judge and raised a constitutional argument

Held:

(i) Where any trial is unreasonably delayed through no fault or strategem of the
accused, the arrested person must be released on what one might call
"constitutional bail". Such bail is available and clearly overrides any
prohibitions in the lesser laws so that Article 13(3) would apply to any
unreasonably delayed case, whatever the charge and whatever s.43 of the Act.,
or s.123 of the C.P.C. or any other similar law may say

(ii) There is nothing in the Constitution which invalidates a law imposing a total
prohibition on the release on bail of a person reasonably suspected of having
committed a criminal offence, provided that he is brought to trial within a
reasonable time after he has been arrested and detained

(iii) Before the stage when a trial becomes unreasonably delayed, it is

constitutionally permissible to authorise deprivation of liberty, if authorised by
law, and without making any provision for bail under any circumstances

Cases Referred to to:

1. Oliver John Irwin v The People S.C.Z. Judgment No. 4 of 1993
2. Chilufya v The People S.C.Z. Judgment No. 8 of 1986
3. Sekele v The People S.C.Z. Judgment No. 4 of 1990
4. Kaunda v The People S.C.Z. Judgment No. 12 of 1991
5. Ngui v Republic of Kenya (1986) L.R.C. (Const.)308

77
6. Bull v Minister of Home Affairs (1987) L.R.C. (Const.)547
7. Attorney General of the Gambia v Momodou Jobe (1984)A.C. 689

For the Appellant: Mr L.P. Mwanawasa, SC. Mwanawasa and Company

For the Respondent: Mr M Mukelabai, Senior State Advocate
__________________________________________

Judgment

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

The appellant appeared before the subordinate court on a charge of unlawful possession
of drugs, contrary to Section 8 of the Narcotic Drugs and Psychotropic Substances Act,
(no. 37 of 1993). the learned trial magistrate refused to grant bail and, in terms of the
Criminal Procedure Code and the supervisory jurisdiction of the High Court under that
law and under Article 94(5) of the Constitution, the appellant renewed his application for
bail before a High Court judge and raised a constitutional argument to which we shall be
referring. To appreciate fully the issued and arguments in this case, we should refer to
the statutory provisions involved. Section 43 of Act No. 37 of 1993 (the Act) reads.

"S.43. Whenever any person is arrested or detained upon reasonable suspicion of

his having committed a cognisable offence under this Act, no bail shall be granted when
he appears or is brought before any Court."

To learn what is intended by the reference to "cognisable offence" we have to turn

to s.23(1) of the Act which reads:

S.23(1)Every drug trafficking and drug manufacturing offence shall be a

cognisable offence for the purposes of the Criminal Procedure Code."

By section 2 of the Act, trafficking is defined to mean:

"(a) being involved directly or indirectly in the unlawful buying or selling of

narcotic drugs or psychotropic substances and includes the commission of an offence
under this Act in circumstances suggesting that the offence was being committeed in
connection with buying or selling or

(b) being found in possession of narcotic drugs or psychotropic substances in

such amounts or quantities as the President may, by statutory instrument, declare to be
trafficking for the purposes of this Act."

The learned judge agreed with a submission that in the absence of a declaration by the
President as to the amounts or quantities to be taken as amounting to trafficking, an
offence of simply illegally possessing drugs is bailable. However, he refused to grant
bail on the merits and traditional considerations of the case, which he was perfectly

78
entitled to do. We do not have too much difficulty with the approach of the learned judge
except to caution that there are two limbs to the definition of "trafficking" and an offence
of unlawful possession could conceivably still be caught by paragraph (a) which we have
set out above if the circumstances suggest, to the trial court, that the offence was being
committed in connection with buying or selling. This suggests to us that a trial
magistrate is not precluded from applying a common sense approach where the amounts
or quantities of drugs alleged in the case appear to the court to exceed what may
reasonably be supposed to be for personal consumption.

Aggrieved by the failure to obtain bail in the High Court and, above all, the provision
which prohibits the grant of bail at all, Mr Mwanawasa lodged an appeal on behalf of his
client. Meanwhile, the trial proceeded and the accused was acquitted. We heard
submissions whether the appeal had become academic and took the view that the appeal
would still serve the very useful purpose of enabling us to pronounce upon the
constitutionality or otherwise of a provision prohibiting the grant of bail and so clarify an
area of law which was posing difficulties in the courts below. It would also serve as a
further opportunity for this court to pronounce upon the competence or otherwise of this
kind of appeal where important constitutional issues are litigated under what appeared to
be a common bail application, when the applicant could so easily have taken up a straight
forward constitutional reference.

As to the latter aspect, we are aware that in Oliver John Irwin v the People we agreed to
treat as an appeal from a determination in a constitutional reference a matter which was
ostensibly a bail application but which, to all intents and purposes, had been argued as a
constitutional reference to decided a constitutional issue whether the High Court had
power to grant bail to a person charged with murder. Our decision in favour of bail has
since been over turned by legislation but the point to note is that we agreed to treat the
proceedings, as irregular as they were, as if they had been a constitutional reference. This
was for the purpose of doing on an issue of great public importance. These indulgences
should not be regarded as available as a matter of course. they are not and we would not
be surprised if in future we decline to extend this sort of enabling fiction to cases that are
not properly constituted and in the correct form of proceedings. the position of this court,
as far as bail applications are concerned when the accused is still being tried below and is
not properly an appellant to this court, has been stated and restated in a number of cases
starting with Chilufya v The People (2); followed in Sekele v The People (3) and Kaunda
v The People (4) as well as the Irwin case. We do not entertain such bail applications and
they can not be disguised as appeals. the only reason for entertaining this appeal
therefore, was to reaffirm this position and to deal with the more important matter as if it
were a constitutional reference under Article 28 from the subordinate court to the High
Court, and thence on appeal to this court.

There was a subsidiary ground of appeal which mercifully Mr Mwanawasa did not
attempt to press with any vigour. He sought to make the startling proposition that it is
unconstitutional to deny bail in a bailable case, even on the merits and having regard to
the usual considerations. The argument was that since Article 18(2)(a) presumes
innocence until an accused person has pleaded guilty or has been convicted after trial, it

79
is to presume an accused guilty and it is therefore unconstitutional for a court to deny bail
in a bailable case. Mr Mwanawasa chose to say very little on this ground and there is no
need for us to adopt a different stance except to summarily reject the proposition. As will
shortly appear, there is no constitutional right to bail for an accused person except where
the trial is unreasonably delayed, no doubt through no fault of the accused.

The major ground of appeal was to the effect that it is unconstitutional for any Act of
Parliament subordinate to the constitution to prohibit or restrict the granting of bail
pending trial. Although the burden of the appeal was an attack on the constitutionality of
s.43 of Act No. 37 of 1993, Mr Mwanawasa also submitted that any other provision of
like effect, such as the prohibition of bail for certain offences under the terms of s.123(1)
of the Criminal Procedure Code, should be similarly pronounced against as being
unconstitutional. Mr Mwanawasa sibmitted that for a provision to refuse bail pending
trial in the fashion of s.43 is unconstitutional since under our law everyone has the right
to be considered for bail on the merit by the court. He drew attention to Article 13(3) of
the constitution which is in the following terms:

"article 13(3) Any person who is arrested or detained

(a) for the purpose of bringing him before a court in execution of an order of a
court; or
(b) Upon reasonable suspicion of his having committed, or being about to
commit, a criminal offence under the law in force in Zambia;

and who is not released, shall be brought without undue delay before a court; and
if any person arrested or detained under paragraph (b) is not tried within a reasonable
time, the, without prejudice to any further proceedings that may be brought against him,
he shall be released either unconditionally or upon reasonable conditions, including in
particular such conditions as are reasonably necessary to ensure that he appears at a later
date for trial or for proceedings preliminary to trial."

For completeness, since we propose to demonstrate that the constitution, while conferring
a right to personal liberty also envisages a perfectly constitutional loss of such liberty,
among nine other reasons, to facilitate the prosectution of offenders against the criminal
law, we quote Article 13(1)(e)

"article 13(1) No person shall be deprived of his personal liberty except as may be
authorised by law in any of the following cases:

(e) unpon reasonable suspicion of his having committed, or being about to

commit, a criminal offence under the law in force in Zambia;

We should also mention that Article 18, apart from confirming the presumption of
innocence, also requires a fair and expeditious hearing within a reasonable time. An
accused is clearly entitled to be tried and to have a decision rendered in his trial within a
reasonable time.

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Mr Mwanawasa's arguments were that Article 13(3) entitles any arrested person to a trial
within a reasonable time and where any trial is unreasonably delayed, such person must
be released - shall be released - on bail as clearly stipulated by Article 13(3). Up to this
point in time, we have no problem with the submission and agree entirely that where any
trial is unreasonably delayed through no fault or strategem of the accused, the arrested
person must be released on what one might call "constitutional bail". Such bails is
available and clearly overrides any prohibitions in the lesser laws so that Article 13(3)
would apply to any unreasonably delayed case, whatever the charge and whatever s.43 of
the Act., or s.123 of the CPC or any other similar law may say. We begin to disagree
with Mr Mwanawasa when he argued that s.43 is inconsistent with Article 13(3) because
it does not contain any qualification or acknowledgement of the constitutional provision
so that bail would be unavailable even where the trial was unreasonably delayed. The
supremacy of the constitution is commanded in the constitution itself - see Article 1(12) -
and it is not necessary that s.43 of the Act and similar provisions should be expresses to
be subject to the constitution, as Mr Mwanawasa proposed. This argument, together with
one criticizing the legislature's attempt to circumscribe judicial power by simply barring
bail and predetermining by enactment who shall not be entitled to bail, has not found
much favour in the senior courts or the commonwealth. We are aware of Mr
Mwanawasa's arguments succeeding only in the Kenyan case Ngui v Republic of Kenya
(5) which was considered and very respectfully, but properly in our view, rejected by the
court in the Zimbabwean case of Bull v Minister of Home Affairs (6) especially the
appellate decision from page 555. Bull followed the decision of the Privy Council in
Attorney General of the Gambia v Momodouf Jobe (7) We propose to dwell on these
cases in a short while but the clear position we have come to is that we agree with the
Privy Council and the Appellate Division in Zimbabwe and will dispose of this appeal as
they did their and we will reject the Kenyan approach, which coincided with Mr
Mwanawasa's. Our conclusion based on these cases which are of very high persuasive
value and which dealt with provisions very similar, if not identical, to ours is that there is
nothing unconstitutional in a provision which prohibit or restricts the grant of bail
pending trial. Such provisions do not conflict with Article conferring "constitutional
bail" where there has been an unreasonably delayed trial. It follows also that Mr
Mukelabai was on firm ground when he argued that the constitution itself envisages that a
person being tried can be in custody and that the accused can not be said to be entitled to
bail as a matter of right. He was also on firm ground when he argued that drug
trafficking, murder, and similar cases where bail is prohibited are to be viewed against
the provisions of Article 13(3) which apply when there is unreasonable delay.

We turn to look at the three cases mentioned. In the Gambian case of Jobe it was
contended that a law S.7 of the Special Criminal Court Act 1970-- that prohibited the
granting of bail, in the absence of special circumstances; to a person charge with an
offence involving misappropriation and theft of public funds and property, was invalid as
being in conflict with Section 15 of the Constitution of the Gambia. As pages 696 to 697,
Lord Diplock said:

"Section 7 which deals with bail need to be set out verbatim:

81
 '(1) any person who is brought to trial before the court shall not be granted bail
unless the magistrate is satisfied that there are special circumstances warranting the grant
of bail.

(2) Before bails is granted under this Act the accused shall be ordered (a) to pay
into court an amount equal to one third of the total amount of moneys alleged to be the
subject matter of the charge or pledge properties of equivalent amount as guarantee; and
(b) to find at least two sureties who shall pay into court an amount equal to one third of
the total amount alleged to be the subject matter of the charge or pledge properties of
equivalent amount as guarantee.

(3) Any money or property paid into court or pledge under this Act shall be
forfeited to the state the event of the accused jumping bail.'

The relevant provisions of the Constitution relating to remand in custody and release on
bail are to be found in section 15 of the Constitution and they are:

(1) No person shall be deprived of his personal liberty save as may be authorised
by law in any of the following cases, that it to say:...(e)upon reasonable suspicion on his
having committed, or being about to commit, a criminal offence under the law of The
Gambia;..(3) any person who is arrested or detained... (b) upon reasonable suspicion of
having committed, or being about to commit, a criminal offence under the law of The
Gambia; and who is not released, shall be brought without undue delay before a court.
(4) Where any person is brought before a court in execution of the order of a court in any
proceedings or upon suspicion of his having committed or being about to commit an
offence, he shall not be thereafter further held in custody in connection with those
proceedings or that offence save upon the order or a court.

(5) If any person arrested or detained as mentioned in subsection 3(b) of this section is
not tried within a reasonable time, then without prejudice to any further proceedings that
may be brought against him, he shall be released either unconditionally or upon
reasonable conditions, including in particular such conditions as are reasonably necessary
to ensure that he appears at a later date for trial or for proceedings preliminary to trial'.

There is thus nothing in the Constitution which invalidates a law imposing a total
prohibition on the release on bail of a person reasonably suspected of having committed a
criminal offence, provided that he is brought to trial within a reasonable time after he has
been arrested and detained. Section 7(1) of the Act which prohibits release on bail, not
totally but subject to an exception if the magistrate is satisfied that there are special
circumstances warranting the grant of bail, cannot in their Lordships' view be said to be
in conflict with any provision of the constitution.

Again at page 698, Lord Diplock went on to observe:

"Section 15(5) of the constitution does not come into operation unless the person
who has been arrested upon reasonable suspicion is not tried within a reasonable time.

82
There is nothing in the Act which authorises unreasonable delay in bringing a suspected
person to trial."

The Gambian case is in point and we do not see any reason for coming to a different
conclusion in this case, concerned as it is with similar issues. As we have pointed out,
this case was followed by the appellate division in Zimbabwe in the Bull case where the
case concerned a law under which defendant could certify that the grant of bail would be
prejudicial to public security, whereupon no bail could be granted. The question was
whether such law was not unconstitutional. We do have similar provisions and the court
was called upon to pronounce upon the constitutionality of that law in the light of section
13 and section 18 of the constitution of Zimbabwe. These two sections and our own
Articles 13 and 18 could have been drafted - and numbered - by the same person. the
Zimbabwean case is, therefore, also very much in point. We therefore agree with them
on the general approach to the interpretation of the constitution, which is to follow the
language used and to give effect to the clear intention of the constitution. They reviewed
a lot of authorities but we will be content to adopt the conclusions they reached which we
find to be irresistible and most ligival. thus, like them, we too find that the constitutional
provision for releasing on bail person who are not tried within a reasonable time is , in
the words of Beck, J.A. at p 562:

''Fatal to the contention that a remanded suspected offender has a constitutional

right by reason of section 13(1), prior to the stage when it can be said that he has not been
tried within a reasonable time, to be released on bail; or even to have an impartial and
independent court decide whether or not he should be release on bail."

We agree, that before the stage when a trial becomes unreasonably delayed, it is
constitutionally permissible to authorise deprivation of liberty, if authorised by law, and
without making any provision for bail under any circumstances and this accords with the
plain meaning of the language used in Article 13(3) which Mr Mwanawasa relied upon.
s.43 of the Act under debate and similar section depriving accused persons of bail are not
unconstitutional.

Finally, there was the Kenyan case of Ngui, with which we respectfully disagree. As to
the reasons for so disagreeing, we respectfully adopt the reasoning of Beck,J.A in the
BULL case when he said, at pages 565 and 566:

"It remains only to say that subsequent to the announcement of our conclusion my
attention was drawn to a decision of the Kenyan High Court which was not referred to in
argument, and of which my Colleagues and I were unaware. It is the case of Ngui v
Republic of Kenya, Section 60(1) of the Constitution of Kenya confers on the High Court
of Kenya unlimited original jurisdiction in civil and criminal matters. Section 72(5) of
the Constitution of Kenya provides:

'If a person arrested or detained as mentione in subsection (3)(b) is not tried

within reasonable time, then without prejudice to any further proceedings that may be

83
brought gainst him, he shall be released either unconditionally or upon reasonable
conditions...'.''

Subsection (3)(b) applies to:

''a person who is arrested or detained... unpon reasonable suspicion of his having
committed or being about to commit a criminal offence.''

It was successfully contended before a Bench composed of Simpson CJ and Cockar and
Mbaya JJ that section 123(3) of the Criminal Procedure Code, as amended, was
inconsistent with sections 72(5) and 60(1) of the Constitution.

Section 123(3) of the Criminal Procedures Code originally contained re restriction on the
powers of the High Court to grant bail. In consequence of amendments made in 1978
and in 1984, however, the section came to read as follows:

''the High Court may, save where a person is accused of murder, treason, robbery
with violence or attempted robbery with violence, direct that a person be admitted to bail
or that bail required by a subordinate court or police officer be reduced.''

The decision that the words which the amendments added to the section, namely 'save
where a person is accused of murder, treason, robbery with violence or attempted robbery
with violence"- all offences which carry in Kenya a mandatory death penalty - conflict
with section 60(1) of the Constitution of Kenya, has not relevance to the appeal that is
before us, and I make no comment upon that part of the judgment.

The decision that those words had to be struck out of section 123(3) of the Code as being
in conflict with section 72(5) of the Constitution is, however, very much in point. It was
no part of the facts of that case that the appellant, who was an unwell woman of 54
charged with robbery with violence, had not been brought to trial within a reasonable
time. The reasoning for the decision was simply that, as appears from p.311a-b.

''Whereas section 72(5) of the Constitution makes release on bail mandatory only
in certain prescribed circumstances, it is applicable to all offences. The amendments the
section 123(3) have the effect of prohibiting the High Court from granting bail in cases of
murder, treason, robbery with violence and attempted robbery with violence in any
circumstances. Thus where, for example, a person is accused of robbery with violence
bail may not be granted even if he is not tried within a reasonable time.''

It appears from the report that no case authority was cited to the Court Certainly the
decision of the Privy Council in Attorney General of the Gambia v Momodou Jobe
(supra) was not brough to the Cour't attention if it had, the Court would not have been
able to distinguish the matter before it from JOBE's case in so far as the effect of section
72(5) of the Constitution of Kenya was concerned. the fact that section 123(3) of the
Code could admittedly not be taken as authorising a denial of the High Court's
jurisdiction to release on bail a suspected murderer, traitor or violent robber who is not

84
brought to trial within a reasonable time, because of section 72(5) of the Constitution,
does not, in my respectiful view, lead to the conclusion that such a jurisdiction could not
constitutionally have been denied the High Court (disregarding the question of section
60(1) of the Constitution) in relation to a suspected murderer, traitor or violent robber
while he is being held in custody for a reasonable time pending trial. Such a suspected
offender has no conditional right under section 72(5) to leberty before a reasonable time
for being brought to trial has elapsed. I must therefore say of NGUI's case supra that I
respectifully disagree with the reasoning that I have quoted above which appears at
p.311a-b of the report.

For the reasons we have given, the appeal is dismissed.

Appeal dismissed

85
CRISPIN SOONDO v THE PEOPLE (1981) Z.R. 302 (S.C.)

SUPREME COURT
GARDNER, AG. D.C.J., CULLINAN, J.S., AND MUWO, AG. J.S.
18TH NOVEMBER, 1981
(S.C.Z. JUDGMENT NO. 25 OF 1981)

Flynote

Evidence - Alibi - False alibi - Whether conclusive against accused.

Evidence - Witnesses - Wife or husband of defendant - Whether competent witness
against co-defendant.
Evidence - Witnesses - Competent and compellable witnesses - Wife of defendant -
Whether competent witness against co-defendant.

Headnote

The applicant was convicted of stock theft. The applicant was not found possession of
any part of the stolen and slaughtered animal but the co-accused with whom he was tried,
was so found. Nonetheless, the

p303

learned trial magistrate found that the co-accused had no case to answer and acquitted
him. The Supreme Court was however of the view that the co-accused should have been
put on his defence. The applicant appealed on the basis of an alibi, and on the ground that
the learned trial magistrate erred in admitting the evidence of PW2, who was the wife of
the second accused. The State did not support the connection.

Held:

(i) Even if an alibi was a deliberate lie on the part of the appellant the inference
cannot be drawn that he did it because he had been involved in the
offence. A man charged with an offence may well seek to exculpate himself on
a dishonest basis even though he was not involved in the offence. Bwalya v The
People (1) followed,

(ii) Where two or more persons are indicted jointly, the wife or husband of any
such defendant is not a competent witness against any co-defendant.

Cases referred to:

(1) Bwalya v The People (1975) Z.R. 227.
(2) R. v Mount & Metcalfe, (1934) 24 C.A.R. 135.
(3) R. v Thompson (1872) L.R. 1 C.C.R. 377. 20

For the applicant: G.F. Kambiti, Acting Director of Legal Aid.

86
For the respondent: N. Sivakumaran, State Advocate.
__________________________________________
Judgment

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

The applicant was convicted of stock theft.

The learned State Advocate, Mr Sivakumaran has indicated that the State does not
support the conviction. The applicant was tried with a co-accused. The applicant was not
found in possession of any part of the stolen and slaughtered animal, but the co-accused
was so found: nonetheless the learned trial magistrate found that the co-accused had no
case to answer and acquitted him. We consider that the co-accused should have been put
on his defence.

The applicant's alibi was apparently false, but as Baron, D.C.J., observed in the case of
Bwalya v The People (1), at p. 232:

". . . even if this was a deliberate lie on the part of the

appellant, as we have no doubt it was, the inference cannot be drawn that he told it
because he had been involved in the (offence); a man charged with an offence may well
seek to exculpate himself on a dishonest basis even though he was not involved in the
offences."

The applicant's false alibi was in no way conclusive against him, neither, do we consider
that such aspect supports the evidence of the material prosecution witness, whose
evidence in fact did require support. The learned trial magistrate observed:

p304

"I also thought of considering the evidence of Biemba PW5

and that of an accomplice. However, I have dismissed this because according to the
evidence Biemba acted as a helper."

We fail to observe how, on that evidence, PW5 could be regarded as other than an
accomplice. There was a further reason for treating PW5 as a witness with a possible
interest to serve. The learned trial magistrate observed:

"Again there is a possibility that Biemba PW5 and his mother

PW2 may have given evidence favourable to the second accused because they are of one
family. If this is the case then their evidence is suspected and the court cannot act on it
without any form of corroboration."

PW5 was in fact the second accused's son. The learned trial magistrate found
corroboration in the evidence of two other prosecution witnesses who in fact were fellow
accomplices: they were each found in possession of part of the stolen and slaughtered

87
animal. To make matters worse, the learned trial magistrate failed to observe that the
evidence of PW2 was inadmissible: she was the wife of the second accused. In the case
of R v Mount & Metcalfe (2) the wife of a co-accused gave evidence for the prosecution
against her husband and the two appellants. Charles, J., observed at p. 136:

"All that evidence was absolutely inadmissible. It has long

been held that at common law a wife is not only a compellable, but not even a competent,
witness against her husband. That principle was enunciated with regard to a case where
prisoners are charged jointly in Thompson (3), where it was made quite clear that, where
two or more persons are indicted jointly, the wife or husband of any such defendant is not
an available witness against any co-defendant."

The offence under consideration does not fall within the exceptions, statutory or
otherwise, to the above rule. PW2 was therefore not a competent witness for the
prosecution and her evidence was completely inadmissible.

The conviction cannot stand. The application is allowed and will be treated as the hearing
on appeal. This appeal is allowed, the conviction is quashed and the sentence set aside.

Appeal allowed

88
1994 ZR p22
ZAMBIA NATIONAL HOLDINGS LIMTIED AND UNITED NATIONAL
INDEPENDENCE PARTY (UNIP) v. THE ATTORNEY-GENERAL (1994) S.J. 22
(S.C.)

SUPREME COURT
NGULUBE, C.J., SAKALA, CHAILA, CHIRWA AND MUZYAMBA, JJ.S.
S.C.Z. JUDGMENT NO. 3 OF 1994

Flynote

High Court - Juridiction of - Article 94 of the Constitution - How it should be construed

in relation to other laws governing the exercise of the jurisdiction of the High Court
Compulsory acquisition - Constitutionality of - Compensation under the Lands
Acquisition Act - Compensation postponed till after determination of the case

p23

Statutory instruments - Force of - Procedure for enactment of - Cap 2 and Article 80 of

Constitution

Headnote

The appellants brought a petition in the High Court to challenge the decision for the
respondent to acquire compulsorily under the Lands Acquisition Act the appellants' land
being Stand number 10934 Lusaka which is also known as the New UNIP Headquarters.
The President resolved that it was desirable or expedient in the itnerests of the Republic
to acquire this property whereupon the appropriate Minsiter gave notice to the appellants
of the Government's intention in that behalf and the steps and formalities under the Act
for such acquisition were commenced. The appellants wrote to the respondent suggesting
a sum of money to be aid as compansation but as it it turned out, and as the parties
specifically informed the learned trial judge, they wished the question of compensation to
be postponed until the court had disposed of the challenge to the legality and
constitutionality of the compulsory acquisition. The petition was unsuccessful and the
appellants appealed.

Held:

(i) Although Article 94 of the constitution gives the High Court unlimited
jurisdiction that court is bound by all the laws which govern the exercise of
such jurisdiction

(ii) Statutory instruments only come into force in when made in accordance with
the relevant section of Cap 2 and Article 80 of the Constitution

89
(iii) The LandsAcquisition Act did not contravene the spirit and intent of Article
16(1) of the Constitution

(iv) The appellants did not discharge the burden which was on them to demonstrate
mala fides on the part of the President

(v) The acquisition here was not unlawful for want of a prior tender of
compensation

Cases referred to:

(1) Garthwaito v Garthwaito (1964) 2 ALL E.R. 233.
(2) Guaranty Trust Co. of New York v Hannay & Co. (1914-16)
ALL E.R. Rep. 224.
(3) Miyanda v The High Court (1984) Z.R. 62.
(4) Codron v Macintyre and Shaw (1960) R. & W. 416
(5) Oliver John Irwin v The people S.C.Z. Judgment No. 4 of
1993.
(6) M v Home Office (1992) 4 ALL E.R. 97.
(7) Elsie Moobola v Harry Muweza S.C.Z. Judegment No. 3 of
1991
(8) Johnson v Sargant (1918) 1 K.B. 101
(9) Harel Freres Ltd. v Minister of Housing (1986) L.R.C.
(Const.) 472.
(10) Re: Pan Electronics Ltd. S.C.Z. Judgment No. 4 of 1988.
(11) Commissioner of Stamp Duties v Atwill and Others (1973) 1
ALL E.R. 576

For the Appellant: J.B. Sakala and A.J. Mumba, of JB Sakala & Co.
For the Respondent: A.G. Kinariwala, Principal State Advocate

_________________________________________
p24

Judgment

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

The appellants brought a petition in the High Court to challenge the decision of the
respondent to acquire compulsorily under the Lands Acquisition Act the appellants' land
being Stand number 10934 Lusaka which is also known as the New UNIP Headquarters.
The President resolved that it was desirable or expedient in the itnerests of the Republic
to acquire this property whereupon the appropriate Minsiter gave notice to the appellants
of the Government's intention in that behalf and the steps and formalities under the Act
for such acquisition were commenced. The appellants wrote to the respondent suggesting
a sum of money to be paid as compensation but as it it turned out, and as the parties
specifically informed the learned trial judge, they wished the question of compensation to

90
be postponed until the court had disposed of the challenge to the legality and
constitutionality of the compulsory acquisition. The case has proceeded on that basis
both below and here. The petition was unsuccessful and so this appeal. We propose to
deal with the various legal issues and challenges in this appeal in the order in which they
were argued before us.

Shortly after the institution of the proceedings, the appellants applied by summons for an
interlocutory injunction to restrain the respondent, the servants or agents or the State from
taking possession or occupation of, or entering upon, the appellants' property under
discussion pending trial of the cause. The learned trial judge ruled that he was precluded
from making an order of injuction by s.16 of the State Proceeding Act, Cap. 92. This
Section reads:

"16. (1) In any civil proceedings by or against the State the

court shall, subject to the provisions of this Act, have the power to make all such orders
as it has power to make in proceedings between subjects, and otherwise to give such
appropriate relief as the case may require:

Provided that:
(i) where in any proceedings against the State any such
relief is sought as might in proceedings between subjects be granted by way of injunction
or specific performance, the court shall not grant an injunction or make an order for
specific performance, but may in lieu thereof make an order declaratory of the rights of
the parties; and

(ii) in any proceedings against the State for the recovery

of land or other property, the court shall not make an order for the recovery of the land or
the delivery of the property, but may in lieu thereof make an order declaring that the
plaintiff is entitled as against the State to the land or property or to the possession
thereof."

(2) The court shall not in any civil proceedings grant any
injunction or make any order against a public officer if the effect of granting the
injunction or making the order would be to give any relief against the State which could
not have been obtained in proceedings against State."

In the judgment after trial and though the remarks in that behalf were all obiter

p25

and immaterial to the decision, the learned trail judge decided to revisit the question of
injunctions against the State. He found that, although he would still have refused the
interlocutory injunction on the merits (on the basis of adquacy of damages), he had
changed his mind on the correctness of his earlier ruling based on s.16 of the State
proceedings Act. He accepted the argument by Mr. Sakala that in a constitutional case,

91
S.16 of that Act contravenes Articles 28(1) and 94(1) of the constitution which is the
supreme law. Article 28(1) of the constitution reads:-

"28.(1) Subject to clause (5), if any person alleges that any of

the provisions fo Articles 11 to 26 inclusive has been, is being or is likely to be
contravened in relation to him, then, without prejudice to any other action with respect to
the same matter which is law-fully available, that person may apply for redress to the
High Court which shall:

(a) hear and determine any such applicantion

(b) determine any question arising in the case of any person

which is referred to it in pursuance of clause (2);

and which may, make such order, issue such writs and give
such directions as it may consider appropriate for the purpose of enforcing, or securing
the enforcement of, any of the provisions of Articles 11 to 26 inclusive."

Article 94(1) of the constitution reads:-

"94 (1) There shall be a High Court for the Republic which
shall have, except as to the proceedings in which the Industrial Relations Court has
exclusive jurisdiction under the Industrial Relations Act unlimited or original jurisdiction
to hear and determine any civil or criminal proceedings under any law and such
jurisdiction and powers as may be conferred on it by this Constitution or any other law.

The learned trial judge expressed himself on the point in the following terms:

"My mind has been troubled in this way: The constitution is

the Supreme Law of the Country. It has enacted above that the High Court 30 shall have
unlimited jurisdiction. It has also enacted under Article 28(1) (b) that the Court "May
make such orders, issue such Writs and give such directions as it may consider apropriate
for the purpose of enforcing or securing the enforcement of, any of the provisions of
Articles 11 to 26.

As I see it the provisions of Section 16 (1)(i) of the State

proceedings Act have undoubtedly contravened the provisions of Articles 28(1)(b) and
94(1) of the constitution by limiting the powers of the court. The Provisions are
unconstitutional and consequently null and void."

Although the learned trial judge finally came down in favour of the appellants on this
narrow point, they have advanced as their first ground of appeal before us

p26

92
that the court below was in error when in the earlier ruling it refused to grant an
interioucutory injunction on the basis that S.16 of Cap. 92 barred such an order. The
learned trial judge is now the Deputy Chief Justice of this Country and it is therefore with
much regret that we find ourselves constrained to disagree with the conclusion reached
by such a senior judge. However, we have to seize the apportunity presented by the
ground of appeal to reverse the nullification of s.16(1)(i) of Cap. 92, a pronouncement
which even Mr. Sakala, for the appellants, does not support.

In the passage from the judgment which we have quoted, much was made of the
expression "unlimited jurisdiction" and the section was struck down allegedly "for
limiting the powers of the court". The reasoning below is insupportable. In the first
place, it revealed a miscenception about the word "juristiction", especially when
described as "unlimited jurisdiction." It is, in our considered opinion, necessary to first
understand this troublesome word "jurisdiction" which appears no less than three times in
Article 94(1) of the constitution. We recall a useful passage from the judgment of
DIPLOCK, L.J., in Garthwaite v Garthwaite (1) at pages 241 to 242 where he said:

"The High Court is the creation of statute, and its juristiction

is statutory. As was pointed out by PICKFORD,L.J. in Guaranty Trust Co. of New York
-v- Hannay & Co. at page 35 the expression "jurisdiction" of a court may be used in two
different senses, a stick sense (which he regarded as the only correct one) and a wider
sense. I think, with respect, that he defined the strict sense too narrowly, for it would not
embrace the ocurt's lack of jurisdiction to entertain a suit based on the personality of a
party, as for instance against a foreign severeign or ambassador. However, it is
important for the purposes of the present appeal to distinguish between the two senses in
which the expression is used. In its narrow and strict sense, the "jurisdiction" of a validly
constituted court cannotes the limits which are imposed on its power to hear and
determine issues between persons seeking to avail themselves of its process by reference
(i) to the subject-matter of the issue, or (ii) to the persons between whom the issue is
joined, or (iii) to the kind of relief sought, or any combination of these factors. In its
wider sense it embraces also the settled practice of the court as to the way in which it will
exercise its power to hear and determine issue which fall within its "jurisdiction" (in the
strict sense), or as to the circumstances in which it will grant a particular kind or relief
which it has "jurisdiction" (in the strict sense) to grant, including its settled practice to
refuse to exercise such powers or to grant such relief in particular circumstances. This
distinction between the strict and the wider meaning of the expression 40 "jurisdiction"
was of little importance in the case of the superior courts so long as they did not owe their
origin to statute, for there was no need to distinguish between non-existence of a power
and settled practice not to exercise an existing power. However, in the case of courts
created by statute, as the Supreme Court of Judicature, comprising the High Court and the
Court of Appeal, has been since 1873, the court has no power to enlarge its jurisdiction in
the strict sense, but it has power

p27

93
to alter its practice proprio motu within the limits which it imposes on itself by the
doctrine of precendent, subject, however, to any statutory rules regulating and prescribing
its practice and procedure made pursuant to any rule-making power contained in the
statute."

We would like to associate ourselves with the foregoing which we respectfully adopt.
We also recall what was said in Miyanda v The High Court at page 64:

"The term "jurisdiction" should first be udnerstood. In the

one sense, it is the authority which a court has to decide matters that are litigated before
it; in another sense, it is the authority which a court has to take cognisance of matters
presented in a formal way for its decision. The limits of authority of each of the courts in
Zambia are stated in the appropriate legislation. Such limits may relate to the kind and
nature of the actions and matters of which the particular court has cognisance or to the
area over which the jurisidction extends, or both. Faced with a similar question of
jurisdiction, two of their Lordships in Codron v Machintyre and Shaw (4), had this to say:

Tredgold, CJ., cautioned, at page 420.

"It is important to bear in mind the distinction between the

right to relief and the procedure by which such relief is obtained. The former is a matter
of substantive law, the lattter of adjective or procedural law."

Briggs, F.J., said, at page 433:

"Confusion may arise from two different meanings of the

word "jurisdiction". On an application for mandamus in England the King's Bench
division may, because of a certain fact proved say "There is no jurisdiction to grant
mandamus in a case of this kind." That refers to an obstacle of substantive or procedural
law which prevents the success of teh application, but not be any limits on the general
jurisdiction of the court to hear and determine the application."

I think it is important to understand the various aspects of jurisdiction to which I have

referred."

We have no reason to disagree with the foregoing.

In order to place the word "unlimited" in Article 94(1) in its proper perspective, the
jurisdiction of the High Court should be contrasted with then of lesser tribunals and
courts whose jurisdiction in a cumulative sense is limtied in a variety of ways. for
example, the Industrial Relations Court is limited to cases under a single enactment over
which the High Court has been denied any original jurisdiction. The Local Courts and
Subordinate Courts are limited as to geographical area of operation, types and sizes of
awares and penalties, nature of causes they can entertain, and so on. The jurisdiction of
the High court on the other hand is not so limited; it is unlimited but not limitless since
the court must exerciseits jurisdiction in accordance with the law. Indeed, Article 94(1)

94
must be read as a whole including phrases like "under any law and such jurisdiction and
powers as may be conferred on it by this constitution or any other law." It is inadmissible
to contrue the word "unlimited" in vacuo and then to proceed to find that a law allegedly
limiting the powers of the court is unconstitutional. The

p28

expression "unlimited jurisdiction" should not be confused with the powers of the High
Court under the various laws. As a general rule, no cause is beyond the competence and
authority of the High Court; no restriction applies as to type of cause and other matters as
would apply to lesser courts. However, the High Court is not exempt from adjudicating
in accordance with the law including complying with procedural requirments as well as
substantive limitations such as those one finds in madatory sentences or other
specification of available penalties or, in civil matters, the types of choice of relief or
remedy available to litigants under the various laws or causes of action. We would like
to conclude this part with an observation which we made in Oliver Hohn Irwin v The
People (5) a case dealing with bail and since overruled by statutory amendments) in
answer to the misconception harboured by the same learned trial judge as to the purport
of Article 94......

"The question for the juridiction of the High Court is of

course irrelevant. Although Article 94 of the constitution gives the High Court unlimited
jurisdiction that court is bound by all the laws which govern the exercise of such
jurisdiction. If, contrary to our finding, (S.1231) (of the Criminal Procedure Code) did
infact limit the powers of teh High Court, it would be bound by such limitation." (words
in bracket added for the sake of clarity).

In the next place we wish to acknowledge that there is a growing school of thought
against the continued existence of state immunity against injunctive relief and other
coercive orders: See, for example, de smith's Judicial Review of Administrative Action,
4th Edition, from page 445. However, the underlying rationale, particularly the
difficulties of enforcment by compulsory process of orders and judgments against the
State make it unrealistic to expect that the State can be proceeded against in all respects
as for a subject. Simon Brown, J. delivered a most useful review of this problem in M -v-
Home Office (6) where, on appeal to the Court of Appeal one of their Lordships
suggested an ingenious way round the problem by finding that as Minsiters and civil
servants are accountable to the law and to the courts for their personal actions, they can
be proceeded against for contempt of court if they disobey or frustrate an order of the
court. For our part, what is certain is that it was not true (and Mr. Sakala properly so
conceded) that, in the absence of an order of interiocutory injunction, no other useful
orders could have been made against the State in order to effect a suspension of the
compulsory acquisition pending trial and, in case of breach, to exact compliance. If, for
example, comliance with fairly coercive perrogative orders like mandamus and others can
be exacted, so can other suitable orders (not amounting to prohibited reliefs) envisaged
by Article 28(1).

95
We have dwelt on the first ground at some length but offer in mitigation that it was
necessary to explain why we have reversed the learned trial judge and restored Section
16(1)(i) which is neither unconstitutional nor null and void for any of the reasons
advanced in the court below.

The second ground of appeal alleged that the learned trial judge erred in law and in fact
when he decided that the Lands Acquisition Act did not contravene the spirit and intent
of Arctile 16(1) of the constitution. This Arcticle reads:

p29

"16 (1) Except as provided in this Article no property of any

description shall be compulsorily taken possession of, and he interest in or right over
property of any description shall be compusorily acquired unless by or under the
authority of an Act of parliament which provides for payment of adequate compensation
for the property or interest or right to be taken possession of or acquired."

One of the appellants' arguments at the trial which has not been repeated with any
enthusiasm here had been that any compulsory acquisition under sub-article (i) had to fit
into one of the spigeon holes" sub-article (2). Sub-article (2) reads:

"(2) Nothing contained in or done under the authority of any

law shall be held to be inconsistent with or in contravention of clause (i) to the extent
that it is shown that such law provides for the taking possesssion or acquisition of any
property or interest there in or right there over."

and goes on to list numerous situatuins such as satidfaction of any tax, execution of
judgments or orders of the court, and so on. Article 16(1) clearly states the general rule,
that is, the acquisition must be under a law which must provide for adquate
compensation. Subarticle (2) on the other hand goes on to give exceptions to, and not
categories of, the general rule. It deals with situations where an involuntary loss of
property could take place even without adequate or any compensation. We see no need
for a strained and exotic construction of this straight forward Article in the manner
attempted, and properly rejected, at the trial.

Before this court, Mr. Sakala's arguments were to this effect: Prior to the promulgation of
Statutory Instrument number 110 of 1992 published on 30th July, 1992, (long after the
commencement of the suit) under which the president, in the exercise of extraordinary
powers granted by S.6(2) of the constitution of Zambia Act, number 1 of 1991, effected
amendments to the Lands Acquisition Act, Cap. 296, this last mentioned Act was at
variance with the current constitution in two important respects. In conformity with the
old constitutional regime, the Lands Acquisition Act before the amendments required
disputes as to compensation to be referred to the National Assembly when the current
constitution ordains that they be referred to the Court. Again, the unamended law simply
referred to "compensation" while the present constitution requires "adequate
compensation." The submission was that Cap. 296 was thus obsolete and in

96
contravention of Article 16(1) of the constitu- tion. Section 6(1) and (2) of the
Constitution of Zambia Act, number 1 of 1991, read:

"6 (1) Subject to the other provisions of this Act, and so

far as they are not inconsistent with the Constitution, the existing laws shall continue in
force after the commencement of this Act as if they had been made in pursuance of the
Constitution, but shall be construed with such modifications, adaptations, qualifications
and exceptions as may be necessary to bring them into conformity with the
Constitution."

(2) The President may by statutory instrument at any time

within two years of the commencement of this Act, make such amendment to any
existing law as may appear to him to be necessary or expedient for bringing that law
into conformity with the provisions of this Act or the Constitution or otherwise for giving
effect or enabling effect to be given to those provisions."

p30

In our considered opinion, even assuming that Statutory Instrument No. 110 of 1992 had
not been passed, subsection (1) of Section 6 which we have quoted affords a complete
answer to Mr. Sakala's arguments. It obliges that existing laws be read so as to be
confomable to the constitution so that the word "adquate" to qualify the compensation
and the reference of disputes to the court rather than to the National Assembly would
have had to be imported into Cap. 296. This Act was not unconstitutional for any of the
reasons advanced by the appellants. We do not understand the learned trial judge to have
found that the Act was saved only by the late amendments effected through the Statutory
Instrument but if indeed this was the finding, then we have no difficulty in affirming as
we have done that Section 6(1) of Act No. 1 of 1991 had already catered for this and
any other existing laws in need of adaptation, modification and so on. Of course, to any
extent that any existing law could not be made to conform, it would be void to the extent
of any such inconsistency, as provided by Article 1(2) of the constitution.

The appellants did not dispute the power of the President under s.6(2) of Act number 1
of 1991 to amend laws. They argued, however, that since the amendments affected
fundamental rights, only Parliament could legislate on such matters when Article 79
would have had to be complied with, Article 79 deals with alterations to the constitution
and the special procedures needed for this, including a national referendum to endorse
changes to the part dealing with fundamental rights. With respect to learned counsel
for the appellants, the Lands Acquisition Act is not part of the Constitution and is, on the
contrary, simply a law envisaged under the constitution for depriving persons of their
fundamental right of owning property. We agree with Mr. Kinariwala for the State that
the Statutory Instrument was amending an ordinary enactment, that it Cap. 295, and had
nothing whatsoever to do with amendments to the constitution.

97
The second leg of the argument was that the statutory instrument's effective date could
not be lawfully backdated so as to adversely affect the appellants' rights regarding the
quantum of compensation. Rule 1(2) of the Statutory Instrument reads:-

"1.(2) This Order shall be deemed to have come into

operation on the 30th August, 1991."

In Rule 3 of the order, S.12 of the Lands Acquisition Act (the Section setting out the
principles governing compensation) was amended so as to permit any assessment of
compensation to take into account..... by deduction no doubt ........ any money used in
developing the land which was donated by the Government and any companies which do
not certify that their contribution was specifically made for the use and benefit of the
registered owner. The evidence showed that the bulk of the money, if not all, used to
build the imposing complex the subject of this case came from Government grants
approved by the legislature during the One Party era. We shall return to this aspect under
another ground of appeal. However, in relation to the backdating of the Statutory
Instrument's effect, Mr. Sakala relied on Article 80 of the constitution which provides for

p31

publication and the coming into force of statutory instuments. He also relied on s.19 of
the Interpretation and General provisions Act, Cap. 2. Subsection (1) which is relevant to
this discussion reads:

"19. (1) Subject to the provisions of this section...

(a) the date of commencement of a statutory instrument

shall be the date of its publication in the Gazette or, where a later date is specific therein,
such later date; and
(b) every statutory instrument shall be deemed to come
into for immediately on the expiration of the day next prededing the date of this
commencement."

The law is clear and Mr. Kinariwala's argument that this extraordinary statutory
instrument should be treated on the same footing as an enactment by parliament can not
be entertained. However, the question is whether a statutory instrument can legally have
or be given retroactive effect. We bear in mind that in terms of s.21 of Cap. 2, a
statutory instrument becomes part of the written law and the question whether it is
intended to have retrospective effect is to be answered by the application of principles
identical with those by which the question is determined in relation to statutes. We have
lifted these sentiments out of paragraph 747 of Halsbury's laws of England, volume 86,
3rd Edition, A perusal of paragraphs 644 and 647 of the same reference book supports
the view that there is nothing objectionalbe to written laws having retroactive effect, in
relation to pending litigation and existing causes of action, when they do not affect
substantive rights or impose new liabilities or when the new provisions can be classed
with provisions as to procedure only, In Elsie Moobola v Harry Muwezwa, (7 we

98
considered the introduction of new remedies as falling to be classed with provisions as
to procedure so that the presumption against retrospective effect did not apply to the
distribution of the estate of a deceased husband which was to be effected after the coming
into force of a new enactment which was not in operation when he died.

Two points emerge from what we have been saying. The first is that statutory
instruments can only come into force in the manner ordained by the relevant section of
Cap. 2 and Article 80 of the constitution. Citing Johnson v Sargant (8) as one of their
authorities Keir & Lawson, the learned authors of Cases in constitutuonal Law, 4th
Edition, have this to say at page 25;

"But there is this difference in the operation of statutes and

acts of subordinate legislation: a statute takes effect on the earliest moment of the day on
which it is passed or is declared to come into operation, while orders, regulations and
other acts of subordinate legislation take effect only when they are published to the
outside world. This is a reasonable distinction, for whereas the passing of a statute is
invariably presended by prelonged and open discussion, many acts of subordinate
legislation are imposed on the public without previous warning (see Johnson v. Sargant,
(1918) 1 K. at p. 103, and Statutory Instuments Act, 1946 S.3)"

p32

We believe the foregoing answers the point about the coming into force of the statutory
instrument under discussion. The second point is whether the Statutory instrument
having come into operation only when it was published, can have effect on pending
litigation such as this case where the issue of compensation has not been litigated or
adjudicated.

Contrary to the appellant's submissions, the issue of compensation which has not been
litigated relates to a remedy on new principles of assessment and the amendments
effected to the Lands Acquisition Act in such event will apply in accordance with the
reasoning in the Moobola (7) case. In any event the application of the new principles of
assessment can only be prospective on the facts of this case although they will apply to
an existing cause of action. It will not be unlawful to make the deductions now provided
for. As will shortly appear when we come to the fourth ground of appeal, the deductions
can not be resisted on other grounds to be discussed in a moment. In sum, we are
satisfied that the lands Acquisition Act did not contravene the spirit and intent of Article
16(1) of the Constitution as alleged in the second ground of appeal. On the contrary, if
we take the liberty to borrow from the language of the headnote in Harel Freres Ltd v
Minister of Housing (9) a case from Mauritius - the procedure for the compulsory
acquisition of land in Zambia prescribed by the Lands Acquisition Act gives faithful
effect to the spirit and intent of Article 16(1) of the constitution. It gives the landowner
recourse to the courts to challenge the legality and constitutionality of the compulsory
acquisition and, in default of agreement, the question of compensation can also be
referred to the course. The ground of appeal in this behalf is unsuccessful.

99
The third ground of appeal alleged error on the part of the learned trial judge when he
held that the compulsory acquisition of the appellants' property had not been done in bad
faith. it was not in dispute that the Lands Acquisition Act gives the power to the President
to resolve in his sole judgment when and if it is desirable or expedient in the interests of
the Republic to acquire any particular land. Quite clearly, a provision of this type does
not mean that the President's resolve can not be challenged in the courts both as to
legality and other available challenges whereby arbitrariness and other vices may be
checked. There was no dispute on the law that the exercise of statutory powers could be
challenged if based on bad faith or some such other arbitrary, capricious or ulterior
ground not supportable within the enabling power.

The appellants alleged that the acquisition was based on an ulterior motive or an intent
simply to punish the appellants and they relied on the evidence of two senior members of
the present ruling party, who confirmed that it was the publicly stated intention of the
MMD party even before it ascended to power that it would retrieve properties acquired
with public funds so as to benefit the people of Zambia as a whole. The learned trial
judge found that, far from demonstrating bad faith, the MMD had demonstrated good
faith to the extent that they did not plan to take away indiscriminately all the appellants'
properties but only those acquired or built with State money. The simple answer to this
ground was that the appellants did not discharge the burden which was on them to
demonstrate mala fides on the part of the President. Their additional argument that the
backdating of the statutory instrument already discussed showed such

p33

bad faith can not persuade us to their point of view. The Statutory Instrument was issued
and amendments to the Lands Acquisition Act effected under powers lawfully available
to the President and the desire evinced therein to obtain full credit for State funds utilized
when computing the amount of compensation demonstrated, in our considered opinion,
the highest regard for the interests of the Republic which would otherwise be called upon
to keep on paying several lots of public money when the State had received no valuable
or any consideration for the large contribution originally made to the construction of the
Complex.

The fourth ground of appeal alleged error on the part of the learned trial judge when he
decided that a grant made by parliament could be retrieved especially grants made to
UNIP "if it can be shown that the sovereign or Parliament that granted it was corrupt or
that donations were made in circumstances bordering on duress or undue influence." The
argument was that a grant, like a gift, once given can not be retrieved. Mr. Sakala
submitted that there could have been no undue influence in this case because ofthe
intervention of an independent parliament which authorised the grants. The learned trial
judge had, in dealing with this case, made a lot of gratuitous and uncomplimentary
political remarks against the appellants. he had at one point in the judgement specifically
warned that he intended to go astray and did so with a vengeance and in unfortunate
language, prompting Mr. Sakala to claim that his clients had not had a fair trial. All
litigants are entitled to courteous treatment, However, we do not see that the trial was

100
necessarily unfair especially that the issues were largely legal ones to be decided on the
law. Thus, although there was no evidence to support an allegation of corruption, the
point about undue influence was quite valid. As we pointed out in Re pan Electonics Ltd.
(10) where there is a relationship of trust and confidence, and inexplicably large gifts are
made, the presumption of undue influence will be rebuttable only on proof of full, free
and informed thought on the part of the donor. It can not be argued that gifts can never
be retrieved since there are exceptions, such as undue influence, which can vitiate the gift
if the donor who had acted to his prejudice repents of the transaction. The evidence on
recard shows that the appellants were in a position to and did dictate to the Government
of the day to transfer to themselves the land in question which had previously been
allocated to certain Minstries. We take judicial notice that, during the One Party era,
UNIP controlled and formed the legislature and the Government. Even the first appellant
enjoyed a special status as evidenced by amendments to the Income Tax Act introduced
by Act No. 12 of 1982 and Act No. 14 of 1987, both of which have since been replaces
by Act No. 11 of 1992. The 1982 Act emended S.41 of CAP. 668 specifically in relation
to donations for the construction in Lusaka of the eadquarters of the United National
Independence party which were deductible as charitable donations. The 1987 Act added
Zambia national holdings Ltd. to the list of organisations whose income was exempt from
tax. In truth, there was between the second appellant and the Government the plainest
and clearest fiduciary relationship which raised a presumption of undue influence so
strong that it could be rebutted only on the strongest evidence. The intervention an
"independent" Parliament which was formed by the second appellant to authorise the
Government also formed by the second appellant to make the large donations for

p34

which there was no quid pro quo of any kind can not conceivably be regarded as evidence
rebutting the presumption and the irrefutable fact of undue influence. As long as there
was any sort of control by the ruling Party over the Government and Parliament, the last
two could not be regarded as having been in a position to form an entirely free and
independent unfettered judgment. The gift or the grant in this case is recoverable on
behalf of the Republic quite independently of the principles of assessment under the
Lands Acquisition Act and when coupled with those principles, the case for taking the
Government donations into account when computing the compensation payable is, in our
most considered view, unanswerable and unassailable. Because it is unnecessary for the
decision here, we have refrained from discussing the possibility that there was also a
resulting trust on the facts disclosed.

In any case, we consider that this is not unreasonable to expect that any political party
forming the Government and having the control of public funds will consider itself at
doing so in trust for the people of this country and for their common advancement
benefit. The fourth ground of appeal also fails.

The fifth ground of appeal read that "the learned trial judge erred and misdirected himself
in law when he ruled that the provisions of S.11(4) of the Lands Acquisition Act which
require that possession of the land in dispute can only be taken after payment of just

101
compensation into court were not breached by the respondent who entered the premises
without fulfilling that condition precedent". The learned trial judge infact held the view
that the appellants were correct in contending that the tender of compensation was a
condition procedent to the taking of possession but found that there was no need for such
extra payment when the complex had been constructed with Government money.

Under S.11 of the Lands Acquisition Act which sets out the procedures thereof,
Subsection (1) deals with disputes other than one relating to compensation; subsection (2)
provides for disputes as to the amount of compensation to be referred to the court;
subsection (3) which talked about the finality of any compansation determined by the
National Assembly was repealed by statutory instrument No. 110 of 1992; while
subsection 94) and its proviso reads....

"(4) The existence of any dispute as aforesaid shall not affect the
right of the President and persons authorised by him to take possession of the property:

Provided that where a dispute exists as to the amount of

compensation or the right to acquire the property without compensation, possession may
be taken only after payment of the amount regarded by the Minister as just
compensation........

(i) in the case of a dispute as to the amount of

compensation, to the person entitled to compensation (or into court if the identity of such
person, or any question of apportionment, is also in dispute);

(ii) in the case of a dispute as to the right to acquire the

property without compensation, into court."

At first glance, the proviso relied upon makes curious reading since it seems to
undermine the substantive provision. However, guided by the attitude adopted

p35

by the Privy Council in Commissionr of Stamp Duties v Atwill and Others (11) which we
have no reason to discount, we too consider that it is very frequently the function of
provise merely to limit or qualify rather than to add to the substantive provision.
However, there may be situations where a proviso will not necessarily have that restricted
effect. Having examined s. 11(4) against the packared of the scheme under the Act for
the resolution of disputes, we are satisfied that the proviso should be construed as having
qualified the substantive provision so as to introduce a procedural condition presendent
whenever there is a dispute. However, it is also clear that the existence of a dispute in
fact is a sine qua non for the invocation of this proviso. On the facts of this case - and
Mr. Sakala was constrained to concede that the whole argument may have been a moot
point - there was no dispute between the parties or before the court concerning the
amount of compensation within the intention of s.11. The parties had neither agreed nor
disagreed on any sum of money and they specifically requested the court not to go into

102
the question of compenstion which was postponed until after the determination of the
challenge based on legality and constitutionality. In any event, it is unnecessary for the
purpose of this judgment to consider what would be the result if possession were taken
without a prior tender of compensation or if the State contemplated an acquisition
without compensation since no such dispute exists in this case. The learned trial judge
was on firm ground in his conclusion, though not in his reasons for the conclusion. The
acquisition here was not unlawful for want of a prior tender of compensation.

The sixth and last ground of appeal related to the order for costs awarded against the
appellants. Undoubtedly, this case raised constitutional issues of general importance
and the practice in this court has been to depart from the general rule of costs following
the event when the litigation has made a significant contribution of public importance
particularly on issues which came before the court for the first time. We agree with the
appellants that these considerations ought to ahve weighed in favour of the practice
referred to. We allow this ground of appeal and set aside the order for costs made below.

In sum., the appeal is unsuccessful but for the reasons just given each side will bear its
own costs both here and below.

Appeal dismissed.

103
SHILLING BOB ZINKA v THE ATTORNEY-GENERAL (1991) S.J. (S.C.)

SUPREME COURT
SILUNGWE, C. J., NGULUBE,D.C.J., GARDNER, CHAILA AND CHIRWA, JJ.S.
29TH AUGUST, 1989 AND 5TH JULY, 1991
(S.C.Z. JUDGMENT NO. 9 OF 1991)

Flynote

Constitutional Law - Emergency powers - Requirement for proclamation to be made -

Whether mandatory - Whether wrong reference to the Emergency Powers invalidates the
president's exercise of a power

Principles of natural justice - the audi alteram Partem rule - Exclusion of rule where there
are no statutory guidelines - Section 24 of the Trades Licensing Act vis a vis the audi
alteram Partem rule ( No man shall be condemned unheard)

Headnote

On February 19, 1988, the President promulgated the Emergency (Essential Supplies and
Services) Regulations, 1988 contained in Statutory Instrument No. 38 of 1988. The
Regulations provided, inter alia (vide Regulation 4 (1)), that " any property or
undertaking, other than land" belonging to any person or company whose licence has
been revoked by the President under the Trades Licensing Act, Cap. 707, may be
acquired or taken possession of, or control over, by the Republic.On the following day -
February 20 - the President made Statutory Instrument No. 39 of 1988 under section 24
of the Trades Licensing Act: this was the Trades Licensing (Revocation) Order, 1988
under which a number of licences held (in many parts of the Republic) by named
Companies and individuals, including the appellant, were revoked. During the night of
the same day, police went to the appellant's property and searched the place but found
nothing of importance. Later, the appellant was forced to surrender his property keys to
police and special branch personnel. His consequent petition to the High Court was
dismissed hence the appeal.

Held:

(i) The Emergency Powers Act and Regulations made thereunder can be invoked
only when a proclamation declaring that an actual public emergency exists
under Article 30(1)(a) of the Constitution

(ii) The power which the President purportedly exercised under the Emergency
Powers Act could lawfully and validity have been exercised by him under
section 3(2)(c), (d) and (e) of the Preservation of Public Security Act; the
President's exercise of his power is traceable to a legitimate source, the fact that
he purportedly exercise that power under a wrong source does not invalidate
his action

104
(iii) Where a power is being exercised to deprive a person of the rights and freedoms
of an individual the exclusion of the "audi alteram Partem" rule cannot be
implied, it must be express to oust the presumption.

(iv) The "audi alteram partem" rule has no application to the revocation of the
appellant's licence

Cases referred to:

(1) P.R. Naidu v State of Uttar Pradesh A.I.R. (1977) S.C. 854.
(2) J.K. Steel Ltd. v Union of India A.I.R. (1970) S.C. 1173.
(3) Hukum Chand Mills v State of Madhya Pradesh A.I.R. (1984)
S.C. 1329.
(4) Afzul Ullar v State of U.P.(1964)S.C. 263.
(5) Shamwana v Attorney-General (1981) Z.R. 261
(6) Nkaka Chisanga Puta v Attorney-General (1983) Z.R. 114.
(7) Mario Satumbu Malyo v Attorney-General S.C.Z. Judgment
No. 8. Of 1988.
(8) R.U Chancellor of the University of Cambrige (1723) 1 str
557.
(9) R.U Governor of Brixton Prison ex Parte Soblen (1963) 2
Q.B. 243; 3 All E.R. 601.
(10) Schmidt v Secretary of State for Home Affairs (1969) 2 CH
149; (1969) 1 ALL E.R. 904.
(11) General Medical Council v Spackman (1943) A.C. 627.

For the Appellant: H. Chama, Mwanawasa and Co. and

For the Respondent: M.P. Mvunga, Solicitor-General, Assisted by G. S. Phiri
__________________________________________
Judgment

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

This is an appeal against a decision of the High Court dismissing the appellant's petition
under Article 29 of the Constitution. The Clauses of the Article relevant to this appeal
are in these terms:

"29 (1). Subject to the provisions of Clause (6), if any person

alleges that any of the provisions of Articles 13 to 27 (inclusive) has been or is likely to
be contravened in relation to him, then, without prejudice to any other action with respect
to the same matter which is lawfully available, that person may apply to the High Court
for redress.

(2) The High Court shall have original jurisdiction :

(a) To hear and determine any application made by any person in

pursuance of Clause (1);

105
 (b) And may, subject to the provisions of Clause (8)
make such orders, issue such writs and give such directions as it may consider
appropriate for the purpose of enforcing or securing the enforcement of the provisions of
Articles 13 to 27 (inclusive)."

Articles 13 to 27 (like Articles 28 to 31) fall under PART III of the Constitution and
relate to the "Protection of Fundamental Rights and Freedoms of the Individuals."

The facts of the case may be shortly stated. On February 19, 1988, the President
promulgated the Emergency (Essential Supplies and Services) Regulations, 1988
contained in Statutory Instrument No. 38 of 1988. These Regulations were made under
Section 3 of the Emergency Powers Act, Cap. 108 of the laws of Zambia and received the
approval of the National Assembly immediately before they came into force. The
Regulations provide, inter alia (vide Regulation 4 (1)), that " any property or undertaking,
other than land" belonging to any person or company whose licence has been revoked by
the President under the Trades Licensing Act, Cap. 707, may be acquired or taken
possession of, or control over, by the Republic.

On the following day - February 20 - the President made Statutory Instrument No. 39 of
1988 under section 24 of the Trades Licensing Act: this was the Trades Licensing
(Revocation) Order, 1988 under which a number of licences held (in many parts of the
Republic) by named Companies and individuals, including the appellant, were revoked.

During the night of the said February 20, about seven Zambia Police Officers, led by
Chief Inspector Mwango of Mufulira Central Police Station, awakened the appellant who
permitted them (on request) to search his house and two shops, one of which was in
Mufulira town centre and the other at Mokambo, on the border between Zambia and
Zaire. The Police Officers said that they were looking for essential commodities,
mandrax, cocaine and foreign currency. However, nothing relevant was found in the
appellant's house or in either of his two shops; but an inventory of commodities found in
the Mokambo shop was made.

On February 21, the appellant surrendered his shop keys at the behest of the Zambia
Police Officers and members of the Special Branch in the Office of the President.

On March 4, the appellant brought a Petition before the High Court against the
Respondent but, on being heard, the Petition was dismissed, hence the appeal to this
Court.

Mr. Chama, learned Counsel for the Appellant advanced six grounds of appeal which we
shall now consider.

In his first ground of appeal, Mr. Chama argued that the learned trial Judge had erred in
holding that the Emergency (Essential Supplies and Services) Regulations, 1988,

106
contained in Statutory Instrument No. 38 of 1988, were lawful. The essence of his
submission was that the Emergency Essential Supplies and Services) Regulations made
under section 3 of the Emergency Powers Act were unlawful and unconstitutional for the
reason that the President had not at all issued a Proclamation declaring that a state of
public emergency existed under Article 30 (1)(a) of the Constitution as the said
Proclamation was a mandatory requirement.

Professor Mvunga, the learned Solicitor-General, conceded that there was no specific
Proclamation under Article 30(1) (a) of the Constitution. He argued, however, that the
provisions of section 20(7) of the interpretation and General Provisions Act, Cap. 2 of the
laws of Zambia and the Indian cases of P.R. Naidu v State of Uttar Pradesh (1); J.K. Steel
Ltd. v Union of India (2); Hukum Chand Mills v State of Madhya Pradesh (3) and Afzal
Ulla v State of UP (4) were authorities to justify the President's exercise of his powers
under the law as the Emergency (Essential Supplies and Services) Regulations contained
in Statutory Instrument No. 38 of 1988 and purpotedly made under section 3 (1) of the
Emergency Powers Act could lawfully have been under section 3(2) of the Preservation
of Public Security Act, Cap. 106 of the laws. We shall return to Professor Mvunga's
authorities in a moment.

Let us now look at some constitutional and other statutory provisions germane to the
matter at issue. Article 30(1) of the Constitution provides that :

"30 (1). The President may at any time by Proclamation published in the Gazette declare
that -
(a) A state of public emergency exists; or
(b) A situation exists which, if it is allowed to continue,
may lead to a state of public emergency."

There are here two distinct types of emergencies envisaged by Article 30(1) of the
Constitution, namely, an actual public emergency under Clause (1)(a); and a threatned
public emergency under Clause (1)(b).

On the one hand, the relevant parts of sections 2 and 3 of the Emergency Powers Act
State that :

"2. In this Act, unless the context otherwise requires -

'Emergency proclamation' means a proclamation under the Constitution declaring that a

state of public emergency exists.

3(1). Whenever an emergency proclamation is in force the

President may, by Statutory Instrument, make such regulations appear to him to be
necessary or expedient for securing the public safety, the defence of the Republic, the
maintenance of public order and the suppression of mutiny, rebellion and riot, and for
maintaining supplies and services essential to the life of the community."

107
On the other hand, section 3(1) of the Preservation of Public Security Act is in these
terms:

"3(1). The provisions of this section shall have effect during

any period when a declaration made under paragraph (b) of subsection (1) of section 29
(now paragraph (b) of Article 30(1)) of the Constitution has effect."

(Words in brackets appearing in the quotation are ours). Subsection (2) will be referred
to hereinafter.

It is abundantly clear that the Emergency Powers Act and Regulations made thereunder
can be invoked only when a proclamation declaring that an actual public emergency
exists under Article 30(1)(a) of the Constitution. Similarly, the Preservation of Public
Security Act and Regulations made thereunder can be invoked only when a declaration of
a threatened public emergency exists under Article 30(1)(b) of the Constitution. In other
words, each type of emergency under discussion requires its own specific proclamation
as a condition precedent.

The proclamation and its history so extensively discussed in such cases as Shamwana v
Attorney-General (5), Nkaka Chisanga Puta v Attorney-General (6), and Mario Satumbu
Malyo v Attorney-General (7) relates solely to Article 30(1)(b) of the Constitution. We
would like to underline the fact that this is the only proclamation that has so far been
made in Zambia in terms of Article 30(1) of the Constitution; and that all constitutional
cases that have arisen under emergency legislation pertaining to the preservation of
public security have been decided on the basis of the said proclamation.

As there is no proclamation declaring that a state of public emergency exists in this

country under Article 30(1)(a) of the Constitution, it follows that the President could not
have validly promulgated the emergency (Essential Supplies and Services) Regulations.
There can thus be no doubt that the President's reference to the Emergency Powers Act
was wrong.

The question that must now be asked is whether the President's wrong reference to the
Emergency Powers Act vitiated the exercise of his power in this case. This brings us
back to Prof. Mvunga's submission already alluded to.

Section 20(7) of the interpretation and General Provisions Act states that :

"20(7). Every statutory instrument shall be made under all

powers thereunto enabling, whether or not it purports to be made in exercise of a
particular power or particular powers."

Our understanding of subsection (7) aforesaid is that every statutory instrument shall be
deemed to be made under an existing enabling power and that it is immaterial that the
said statutory instrument purports to be made in exercise of a particular power or powers.
In other words, if a power exists and its exercise can be traced to a legitimate source,

108
then, the fact that such power is incorrectly or erroneously exercised under a wrong
source or power will not vitiate the exercise of the power in question. That this is so is
reinforced by a number of Indian authorities referred to by Prof. Mvunga. For instance, it
was held in P.R. Naidu v State of Uttar Pradesh (1) (in paragraph 18 at page 858):

This court has taken the view that a wrong reference to power will not vitiate any action
if it can be justified under some other power under which the Government can lawfully
do the act."

In J.K. Steel Ltd. v Union of India (2) (paragraph 45 at page 1188), the Supreme Court
of India had this to say:

"There is no dispute that the officer who made the demand

was competent to make the demand both under Rule 9(2) as well as under Rule 10. If the
exercise of a power can be traced to a legitimate source the fact that the same was
purported to have been exercised under a different power does not vitiate the exercise of
the power in question."

In another case, namely, Hukum Chand Mill v State of Madhya Pradesh (3)(in paragraph
4 at page 1332) the Supreme Court of India came to this conclusion:

"It is well settled that merely a wrong reference to the power

under which certain actions are taken by Government would not per se vitiate the actions
done if they can be justified under some other power under which the Government
could lawfully do these acts. It is quite clear that the Government had the power under
S.5(1) and (3) of Act 1 of 1948 to amend the Tax rules for that was a law in force in one
of the merged states. The mistake that the Government made was that in the opening part
of the notification S.5 of the Act was not referred to and the notification did not specify
that the Government was making a regulation under Act 1 of 1948. It is not disputed that
the amendments could be validly made under section 5 of Act 1 of 1948. We are
therefore of the opinion that the mere mistake in reciting the wrong source of power does
not affect the validity of the demand."

And in Afzal Ullah v State of U.P. (4) (paragraph 14 at page 268) the Supreme Court
said:

"It is true that the preamble to the by-laws refers to Clauses

(a), (b) and (c) and J(d) of Section 298 and these Clauses undoubtedly are inapplicable,
but once it is shown that the impugned by-laws are within the competence of Respondent
No. 2 the fact that the preamble to the by-laws mentions Clauses which are not relevant
would not affect the validity of the by-laws. The validity of the by-laws must be tested
by reference to the question as to whether the board had the power to make those laws. If
the power is otherwise established, the fact that the source of power has been incorrectly
or inaccurately indicated in the preamble to the by-laws would not make the laws
invalid."

109
In this particular case under consideration, the relevant paragraphs of section 3(2) of the
Preservation of Public Security Act, are as follows:

"3(2). The President may, for the preservation of public security, by regulation -
(c) Make provision for the prohibition, restriction and
control of residence, movement and transport of persons, the possession, acquisition, use
and transport of movable property, and the entry to, egress from, occupation and use of
immovable property;

(d) Make provision for the regulation, control and

maintenance of supplies and services;

(e) Make provision for, and authorise the doing of, such
other things as appear to him to be strictly required by the exigencies of the situation in
Zambia."

The foregoing clearly demonstrates that the power which the President purportedly
exercised under the Emergency Powers Act could lawfully and validity have been
exercised by him under section 3(2)(c), (d) and (e) of the Preservation of Public Security
Act. In the circumstances, as the President's exercise of his power is traceable to a
legitimate source, the fact that he purportedly exercised that power under a wrong source
does not invalidate his action.

Although the learned trial judge came to his conclusion for the wrong reason, the first
ground of appeal cannot succeed for the reasons stated above.

The second ground was that the learned trial judge erred in law in holding that the rules
of natural justice do not apply to section 24 of the Trades Licensing Act, Cap. 707 and, in
particular, to this case.

It is common ground that the appellant's trading licence was revoked by the president
under section 24 of the Trades Licensing Act. Mr. Chama contended that the revocation
of the licence without giving the appellant an opportunity to be heard was contrary to the
rules of natural justice.

The principles of natural justice - an English law legacy - are implicit in the concept of
fair adjudication. These principles are substantive principles and are two-fold, namely,
that no man shall be a judge in his own cause, that is , an adjudicator shall be
disinterested and unbiased (nemo judex in causa sua): and that no man shall be
condemned unheard, that is, parties shall be given adequate notice and opportunity to be
heard (audi alteram partem). As was quaintly stated by an eighteenth-century judge,
Fortescue, J., in R v Chancellor of the University of Cambridge (8) at P.567:

"Even God himself did not pass sentence on Adam before he

was called upon to make his defence."

110
We are, of course, here concerned with the second principle.

The Principles of natural justice must be observed by courts, tribunals, arbitrators and all
persons and bodies having the duty to act judicially, except where their application is
excluded or by necessary implication, (See Halsbury's Laws of England, 4th edition,
paragraph 64; and S.A. de Smith's Judicial Review of Administrative Action, 3rd
edition). In order to establish that a duty to act judicially applies to the performance of a
particular function, it is now unnecessary to show that the function is analytically of a
judicial character or that it involves the determination of a lis inter partes; however, a
presumption that natural justice must be observed will arise more readily where there is
an express duty to decide only after conducting a hearing or inquiry or where a decision
entails the determination of disputed questions of law and fact. Prima facie, moreover, a
duty to act judicially will arrive in the exercise of a power to deprive a person of his
livelihood; or of his legal status where that status is not merely terminable at pleasure; or
to deprive a person of liberty or property rights or any other legitimate interests or
expectations or to impose a penalty. However, the conferment of a wide discretionary
power exercisable in the public interest may be indicative of the absence of an obligation
to act judicially (see R v Governor of Brixton Prison, ex parte Soblen (9) and Schmidt v
Secretary of State for Home Affairs (10).

Mr. Chama argued that the revocation of the appellant's trading licence deprived him of
his livelihood and property rights without notice and opportunity to be heard. In aid of
his submission, he cited, inter alia, the case of General Medical Council v Spackman (II)
wherein Lord Wright said at page 644:

"If the principles of natural justice are violated in respect of

any decision, it is indeed immaterial whether the same decision would have been arrived
at in the absence of departure from the essential principles of justice. The decision must
be declared to be no decision."

Section 24 of the Trades Licensing Act provides that -

"24. The President may, at any time, by statutory order,

revoke any licence and, notwithstanding anything to the contrary in this Act contained,
any licence so revoked shall expire upon the commencement of such statutory order."

It is in the President only that this power of revocation is vested. The section contains no
procedural safeguards for an aggrieved party. This would appear to have been deliberate
on the part of the legislature especially in view of the fact that section 19 of the Act
makes provision for anyone aggrieved by a decision of the licensing authority to appeal
against such decision to the Minister; but no similar provision exists in relation to section
24 to enable an aggrieved party to appeal or make representations to the revoking
authority. As S.A. de Smith (already referred to) points out in his book at page 144,
under the general heading; THE PATH OF DEVIATION-

111
 "Where no statutory provision is made for prior notice to be
given, it can often be assumed that the omission is deliberate."

There is here no express statutory provision to show that prior notice of opportunity to be
heard should be given before a licence can be revoked under section 24 of the Trades
Licensing Act. It is necessary to consider whether, in this case, the "audi alteram partem"
rule can be excluded by implication. In an ordinary case, the assumption referred to by
S.A de Smith night be made.

However, where there is no express statutory provision, as in this case, to exclude the
"audi alteram partem" rule, and a power is being exercised to impose penalties or to
deprive a person of his livelihood; legal status (not being terminable at pleasure);
personal liberty (not involving an illegal immigrant); property rights or any other
legitimate interests or expectations; then a rebuttable presumption arises of the necessity
to give prior notice and opportunity to be heard. Equally, the presumption arises where
revocation of a licence causes deprivation of livelihood or serious pecuniary loss; or is
dependent on a finding of misconduct. In other words, where a power is being exercised
to deprive a person of the rights and freedoms referred to in this paragraph, the exclusion
of the "audi alteram Partem" rule cannot be implied, it must be express to oust the
presumption. Here the presumption clearly arises and this is unrebutted.

But there is a special dimension to this particular case in the sense that the revocation of
the appellant's licence occurred in the context of a declared threatened state of public
emergency under Article 30(1)(b) of the Constitution. The question is whether the
operation of the "audi alteram partem" rule is ousted in these circumstances? Prof.
Mvunga's submission to this question was in the affirmative. He cited Article 26 of the
Constitution which permits derogation from fundamental rights and freedoms, including
property rights enshrined in Artilce 18 of the Constitution.

Article 26 of the Constitution provides that:

"26. Nothing contained in or done under the authority of any

law shall be held to be inconsisted with or in contravention of Article 15, 18, 19, 21, 22,
23, 24, or 25 to the extent it is shown that the law in question authorises the taking,
during any period when the Republic is at war or when a declaration under Article 30 is
in force, of measures for the purpose of dealing with any situation existing or arising
during that period; and nothing done by any person under the authority of such law shall
be held to be in contravention of any of the said provisions unless it is shown that the
measures taken exceed anything which, having due regard to the circumstances
prevailing at the time, could reasonably have been thought to be required for the purpose
of dealing with the situation in question."

The fundamental rights and freedoms protected by the Articles referred to in Article 26
relate to the protection of the right to personal liberty (Art. 15); the protection of property
(Art. 18); the protection for privacy of home and other property (Art. 19); the protection
of freedom of conscience (Art. 21); the protection of expression (Art. 22); the protection

112
of freedom of assembly and association (Art. 23); the protection of freedom of movement
(Art. 24); and the protection from discrimination on the grounds of race, tribe, place of
origin, political opinions, colour or creed (Art. 25).

These are significant fundmental rights and freedoms whose derogation Article 26
permits when the Republic is at war during the existence of an emergency or a threatened
emergency declared under Article 30(1)(a) and (b) of the Constitution. These
fundamental rights and freedoms are plainly superior to the common law principles of
which the principles of natural justice are a part. The synopsis of it all its that the
principles of natural justice will not apply where a power is properly exercised when the
Republic is at war or during the existence of a declaration of an emergency or a
threatened emergency. The declaration of a threatened emergency under Article 30(1)(b)
of the Constitution has been in existence prior to the attainment of this country's
nationhood. In the circumstances, therefore, the "audi alteram partem" rule has no
application to the revocation of the appellant's licence.

For the reasons given, this ground cannot succeed.

The third ground was that the learned trial judge erred both in law in fact when he held
that the appellant had dealt in essential commodities between 1983 and 1986 and that the
definition of "essential commodities" in issue was that under regulation 6(2) of the
Emergency (Essential Supplies and Services) Regulations 1988.

Referring to regulation 3 and Column 1 of the First Schedule contained in Statutory

Instrument No. 121 of 1981, that is , The Control of Goods (Essential Commodities)
Regulations, 1981, Mr. Chama argued that there was no evidence in the court below to
show that the appellant had dealt with any of the commodities listed in the First Schedule
(already referred to) between 1983 and 1986. On the contrary, there was evidence to the
effect that a permit to deal in essential commodities with effect from January 1, 1984,
had been issued to the appellant. The permit was, however, revoked on June 13, 1984 as
is evidenced by the Mufulira District Executive Secretary's letter - marked 39 - of June
13, 1984.

In any event, the appellant was again issued with a permit in 1987 which was short-lived
as it was revoked within a month of its issue. But despite the revocation of the permit,
the appellant continued to sell sugar in his Mokambo shop which was being procured
through Kamuchanga traders in Mufulira. This emerges from the testimony of DW 4.
The revocation of the permit merely served to extinguish his formal source of supply but
he continued to obtain the commodity from an informal source. The sugar that the
appellant sold is an essential commodity within the definition of Statutory Instrument No,
121 of 1981.

In our opinion, the President's Regulation - the subject of this case - related to essential
supplies and services and the learned trial judge was, therefore, in order to refer to
regulation 6(2) of those Regulations as well as to section 2 of the Control of Goods Act,

113
Cap. 690. There can be no doubt in this case that sugar falls within the category of
essential supplies as well as of essential commodities.

The fourth ground was that the learned trial judge had misdirected himself in presuming
that 22 pairs of scissors, 43 plastic bottles of shampoo and other listed items had been
illegally obtained or imported into Zambia.

Although there was evidence to indicate that the appellant had produced clearance
receipts and given a reasonable explanation as to how he had come to be in possession of
some of the items found in his border shop, we do not consider that the issue raised here
is relevant to the determination of this appeal.

The fifth ground was that the learned trial judge erred in law and in fact when he held that
the appellant's goods had been confiscated by the President and that the appellant had no
cause to complain.

The learned Solicitor-General stated that the appellant's goods had not been confiscated
but that they had merely been taken over since the appellant was entitled to compensation
and was free, if dissatisfied with the level of compensation awarded, to appeal to the
National Assembly. In the circumstances, the term "confiscated" was inappropriate. We
are of the view that this ground is innocuous and does not advance the case either way.

The sixth and final ground was that the 1988 Regulations in this case has been used to
punish the appellant and that the learned trial judge ought to have found that the appellant
had been deprived of his property illegally.

This ground fails away as we are unable to find any evidence in support thereof, indeed,
the measures complained of were taken to curb activities prejudicial to the maintenance
of essential supplies and services. Under Regulation 7 of the Regulations, compensation
is payable by the Minister of Finance to anyone adversely affected by measures taken
against him by the executive. In case of a dispute arising as to the amount of
compensation, regulation 8 provides that any claimant or the Attorney-General "may, if
such dispute is not settled within six months, refer the dispute to the National Assembly
which shall by resolution determine the amount of compensation to be paid."

In light of the foregoing, the appellant is unsuccessful on all the grounds raised and so the
appeal is dismissed.

In view of the fact that some of the novel issues raised in the first and second grounds
have been decided upon for the first time, there shall be no order as to costs.

Appeal dismissed.

114
BANDA v THE PEOPLE (1990 - 1992) Z.R. 70 (S.C.) 20

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.
15TH OCTOBER AND 19TH NOVEMBER, 1991
(S.C.Z. JUDGMENT NO. 8 OF 1991)

Flynote

Criminal procedure - Confession - Failure to administer warn and caution statement

creating rebuttable presumption of involuntariness.
Criminal procedure - Confession - Counsel informing Court that initial instructions were
that statement voluntary - Such precluding accused from receiving fair consideration of
challenge to admissibility of statement.

Headnote

During his trial on a murder charge a statement, in which he confessed to the offence,
was admitted in evidence against the appellant. There was a discrepancy between the
police officer who took down the statement and a civilian witness as to whether the
required warn and caution statement had actually been administered. In admitting the
statement the trial Court had relied heavily on a statement from the bar by the appellant's
counsel during the trial that his initial instructions had been that the statement was free
and voluntary. On appeal the Court held that the failure to administer the warn and
caution created a rebuttable presumption of involuntariness and, as there was a
discrepancy between the prosecution witnesses as to whether this had happened, it had
not been rebutted. It was further held that the statement should be excluded as the stance
taken by the appellant's counsel at the trial had amounted to actual prejudice to the
appellant. The appellant's challenge to the admission of the statement could not have
received fair consideration when defending counsel made damaging statements, contrary
to his duty to the client. The statement was excluded but, as there was sufficient other
evidence to convict the appellant, the appeal was dismissed.

p71

Cases referred to:

(1) Shamwana and Others v The People (1985) Z.R .41.
(2) The People v John Nguni (1977) Z.R. 376.

For the appellant: S.K. Munthali, Senior Legal Aid Counsel.

For the respondent: K. Lwali, Assistant Senior State Advocate.

Judgment

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

115
The appellant was convicted of the murder of Lamiwe Banda and sentenced to capital
punishment. The particulars alleged that on 18th October, 1989, at Chingola Village in
Chief Kawaza's area in Katete District, he murdered the deceased. The prosecution case
established that the deceased died from traumatic perforation of her private parts and
rectum and the allegation was that it was the appellant who inflicted the fatal injuries by
violent insertion of a knobkerrie. There was evidence from a number of witnesses that
the deceased told them it was Chisoni who had assaulted her and injured her very badly
including in the private parts. In particular, PW5 testified that on the fateful day, the
deceased had passed by her house and told her she was going to have some beer. A short
while later, the deceased came and fell in her yard and told PW5 that Chisoni had
assaulted her and injured her with a knobkerrie. PW1 was one of those summoned and
the deceased told him too that it was Chisoni who had injured her after she had rejected
his sexual advances. There was evidence also from PW2 who together with PW3
apprehended Chisoni, the appellant, that twice the appellant escaped and ran away from
them but was recaptured. PW2 testified that the appellant admitted that he had killed the
deceased and gave the reason that she had refused to have sexual intercourse with him.
There was, in addition, a full confession recorded by PW7, a police officer, and witnessed
by PW6, a civilian, who happened to be at the police station to report another matter
altogether. The warn and caution statement was admitted at first without any objection
but when allegations of assaults and inducements were made during the defence case, the
learned trial judge correctly held a belated trial within the trial and still ruled in favour of
admitting the statement. In the course of dealing with the warn and caution statement, the
learned counsel then acting for the appellant disclosed to the Court that he was surprised
by the allegation of involuntariness being raised by the accused since his earlier
instructions were that it was a free and voluntary statement and counsel gave as his
opinion that the confession was voluntary. The learned trial judge in his judgment
explicitly relied quite heavily on defending counsel's statements from the Bar as
fortifying his finding on the question of voluntariness an consequent admissibility of the
statement.

The first ground of appeal attacked the finding that the warn and caution statement was
voluntary while the second ground attacked the admission of the same statement on the
basis of unfortunate remarks from the Bar by the defending counsel. In relation to the
first limb, Mr Munthali relied on the evidence of PW5 who testified that he did not hear
any warn and caution actually being administered and that at first the appellant was
reluctant to speak and only did so when PW7 persisted. The objection raised by the
defence was based on alleged assaults and these

p72

were discounted after the learned trial judge found on an issue of credibility that PWs 6
and 7 were to be believed. We can find nothing wrong with that determination. However,
the complaint concerning the absence of any actual administration of the warn and
caution, although it was written at the top of of the statement, was well taken having
regard to the evidence of PW6. In terms of Shamwana and Others v The People [1] the
failure to administer a warn and caution raises a rebuttable presumption of

116
involuntariness and unfairness and it is for the prosecution to advance an explanation
acceptable to the Court for the breach of the relevant judge's rule if the Court is to
exercise its discretion in favour of admission. No explanation is available in this case
where PW7 took the position that he had administered a warn and caution while PW6
contradicted this. There is yet another reason why we should uphold Mr Munthali's
objection to the warn and caution statement. This relates to the second ground of appeal
which attacked heavy reliance placed by the learned trial judge on the defence counsel's
damaging statements from the Bar. In note 11 of para.1137 of Halsbury's, 4th ed., vol. 3,
the learned authors suggest that where a confession of guilt is made to counsel before
trial, he could decline to take up the defence of the case; where a confession made to him
during trial does not debar him from testing the prosecution case to the fault and setting
up available defences so long as he does not set up an affirmative case inconsistent with
the confession. The discussion at para. 1195 of the same volume of Halsbury's underlines
the duty of non-disclosure by counsel of information confided in him by his client which
counsel is not entitled to communicate to anyone else if it would be to the detriment of
his client. We agree with these observations. In this case, the stance taken by defending
counsel, hostile as it was to the accused's interests, not only put the appellant in a fix, as
the saying goes, but also resulted in actual prejudice when the learned trial judge
expressed satisfaction that, because his own lawyer had said so, the confession statement
recorded by PW7 must have been free and voluntary and the objections raised by the
appellant had to be dismissed. We do not see how the appellant's challenge to the
admission of his warn and caution statement can be said to have received fair
consideration when defending counsel made damaging statements, contrary to his duties
to the client. The grounds in this respect are upheld and the statement recorded by PW7
will be disregarded for the purposes of this judgment.

Mr Munthali sought to argue that the learned trial judge did not rely on any other
evidence and that we should not consider such other evidence. On the contrary, as Mr
Lwali pointed out, there was other evidence which the learned trial judge accepted. This
consisted of the statements made by the deceased to PWs 1 and 5 and the confession
made to PW2, a civilian who had apprehended the appellant and against whom there was
no suggestion of any impropriety. In relation to PW5, to whom the deceased made a
report immediately after the indicent, and PW1, who was told the same things later that
day, Mr Lwali submitted that their evidence was admissible as res gestae on the grounds
which were fully discussed by Cullinan, J., as he then was, in The People v John Ng'uni
[2]. He submitted that there was no possibility in this case that at the time when the
deceased spoke to the witnesses she could have distorted the

p73

account or concocted a story. We respectfully agree with the decision in Ng'uni that
evidence of a statement made by a person who is not called as a witness (in this case the
deceased) may be admitted as part of the res gestae and can be treated as an exception to
the hearsay rule provided it was made in such conditions of involvement or pressure as to
exclude the possibility of concoction or distortion to the advantage of the maker or to the
disadvantage of the accused. The tests discussed in Ng'uni were fully met here and the

117
evidence of what the deceased said was properly admitted. It is not correct, as Mr
Munthali suggested, that the accused in Ng'uni was acquitted on the rejection of this type
of evidence; he was acquitted because the eyewitnesses who purported to repeat what the
deceased said were themselves not credible and appeared anxious to conceal the presence
of and the roles played by some members of their family whom the accused had
implicated. In the case at hand, no such adverse finding on credibility was made or could
be made against PWs 1 and 5. What is more, there was nothing else in Ng'uni to support
the evidence of the suspect witnesses as to the words allegedly uttered by the deceased
there implicating the accused, while in this case there was the evidence of PW2 to whom
this appellant confessed.

We are satisfied that even had the learned trial judge excluded the warn and caution
statement recorded by PW7, he must have convicted in any event on the remainder of the
evidence.

The appeal is dismissed. We have nothing to comment on the mandatory sentence.

118
JOSEPH MUTABA TOBO v THE PEOPLE (1991) S.J. (S.C.)

SUPREME COURT
GARDNER, A.J.S, SAKALA AND CHAILA, JJ.S.
5TH MARCH AND 6TH MAY, 1991
S.C.Z. JUDGMENT No. 2 OF 1991
APPEAL NO. 66 OF 1985

Flynote

Murder - Proof beyond reasonable doubt - Witness with an interest to serve - Section 167
of the Criminal Procedure Code

Headnote

The appellant and some other people including the deceased were at a drinking party.
They later left the party and on the way, some branched off to go to their villages leaving
the deceased and the appellant to proceed to their own village. It was testified that the
appellant was the last person to be seen in the company of the deceased. The following
day, one of the villagers and the deceased's father interrogated the appellant on the
whereabouts of the deceased whereupon the appellant then led them to an anthill where
they found the deceased's half-naked body. The appellant did not offer any testimony in
his defence but called a psychiatrist to prove the appellant's defence of insanity.

Held:

(i) That on the balance of probabilities the defence had proved that the appellant
was suffering from a disease of the mind at the time of the commission of the
offence.

Cases cited:
(i) Musongo v The People (1978) Z.R. 266
(ii) Mushanga v The People S.C.Z. Judgment No. 15 of 1983

For the appellant: Mr. S.K. Munthali, Senior Legal Aid Counsel
For the State: Mr. A.B Munthali, Assistant Senior State Advocate
__________________________________________
Judgment

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

The appellant was tried and convicted for the offence of murder contrary to section 200
of the Penal Code Cap. 146 of the Laws of Zambia. The particulars of the offence
alleged that on 21st September, 1980 at Kasama, in the Kasama District of the Northern
Province of the Republic of Zambia, he murdered Salome Safeli Chitabo. He was
sentenced to death. He has appealed against conviction.

119
The prosecution case was that PWs 1, 2 and the appellant had been at a beer party
together with the deceased at PW’s farm. Later PW 1, the appellant and the deceased left
the beer party. According to the case for the prosecution, the three walked for some
distance before PW 1 branched off to proceed to his farm while the appellant and the
deceased, who stayed in the same village, proceeded on for their village. The case for the
prosecution was further to the effect that the appellant was the last person to be seen in
the company of the deceased when she was still alive on the evening of the 21st
September, 1980. The prosecution case was also to the effect that the appellant was
apprehended the following day by a group of people but later handed over to PW 3 and
the appellant’s father. PW 3, a court messenger by occupation, and the appellant’s father
interrogated the appellant and following upon what he had told them, the appellant later
took his father and PW 3 to an anthill, off the path, where they found the deceased’s half
naked body with bruises. The prosecution further relied for their case on a warn and
caution statement recorded by the police from the appellant admitted in evidence after a
trial-within-trial.

The appellant did not himself give evidence on oath in his defence, a course he was
entitled to take. He, however, called a medical doctor in his defence. The doctor’s
evidence was briefly that he was a consultant psychiatrist at Chainama Hills hospital. On
6th November, 1981 he examined the appellant as ordered by court. The doctor
explained that at the time of admission the appellant had a flattering effect on him. His
look was vacant and he was not sure about the dates, months and years. According to the
doctor the appellant complained of hearing some voices which he did experience while
in Kasama in 1979. According to the doctor one of the appellant’s brothers suffered
from mental illness. The doctor also explained that apart from him, other doctors and
clinical psychiatrists conducted some speed tests and that at the time the appellant was
found to smile or giggle on his own without cause. The doctor further stated that a Mr.
Mulenga also found the flat effect and retardation of mental effect on the appellant who
was taking too long or was too slow to think. The appellant according to the doctor,
stayed with them for one year and three months. About 11th March, 1983 he escaped
with other patients from Chainama Hills Hospital after he had improved. According to
the doctor the appellant was likely to have been mentally disturbed at the time of
committing the offence. The doctor was not cross-examined by the prosecution. The
court, however, put some questions to him. In answer to the court’s questions the doctor
said,:

“The aspect relating to the accused sleeping it off after killing

a human being and then report to an uncle the following day that the lady was dead
would suggest irrational mental effect on his part.”

The doctor’s full report was presented before the court. The conclusion in the report
reads as follows: (SIC)

“In my opinion Mr. Joseph M. Tobo suffers from Psychiatric

illness". It is one of the major psychiatric disorders where the patient holds a false belief

120
which is product of irrational thinking. As reported, prior to the alleged affect, he was
hearing some voices threatening him to kill him. These voices, he thought were coming
from deceased and there is a strong likelyhood that at the time of alleged offence was
mentally disturbed by his illness and acted on false belief. He now attends U.T.H.
psychiatric clinic from Lusaka remand prison and has shown satisfactory progress with
the prescribed medication. He does not hallucinate any more but in my opinion he would
require long term psychiatric follow up and care from an institution where the securities
are better.”

The learned trial commissioner, relying on the warn and caution statement and the
circumstantial evidence, found that the appellant assaulted the deceased sexually in the
course of which he strangled and killed her. The learned trial commissioner’s verdict
was finally based on the appellant’s conduct wherein he failed to tell anybody of the
death of the deceased bearing in mind that he was the last person seen in company of the
deceased and also being the person who led to the recovery of the deceased’s body. The
learned commissioner noted that the issue of insanity had been raised very late in the
proceedings. The court rejected the doctor’s opinion raising the defence of insanity.
After carefully examining the doctor’s evidence the learned commissioner stated in his
judgment:

“Here, I have recognised the raw material supplied to the doctor as pure deceit. The
opinion cannot therefore be correct. It is vacant. Let it be known from now on that the
real value of the evidence of a medical expert consists in the logical inferences which he
draws from what he had himself observed, not from what he merely surmises or has been
told by others (A.G.V. Nottingham corporation (1904) ch, 673: Metropolitan Asylum
Dist. V. Hill 474 T.29). The report lacks those logical inferences.
It has no value to this investigation. Quite apart from this
fault, the doctor blundered also when he mentioned what the accused said as to the facts
of the case. That was wrong and unacceptable. Averson v. Lord Kinnard 6 East 188),”

The learned trial commissioner concluded that the defence of insanity was faked and
could not be accepted. On behalf of the appellant Mr. S.K. Munthali filed three
additional grounds of appeal namely:

(1) That the learned trial commissioner misdirected himself by

failing to treat PW 1 as a witness with a possible interest of his own to serve whose
testimony should have been reported with caution;
(2) That the learned trial commissioner misdirected himself by
admitting the confession which was not proved beyond reasonable doubt to have been
made voluntarily and;
(3) That the learned trial commissioner misdirected himself by
failing to make a special finding under the provisions of Section 167 of the Criminal
Procedure Code based on the unchallenged evidence of PW 6, the Psychiatrist.

In his written heads of arguments the first and third grounds were argued together. But as
we see it, this appeal succeeds or fails depending on what view we take of ground three

121
which raises the defence of insanity. We must at this junction observe that the learned
Assistant Senior State Advocate appearing on behalf of the people did not take any
submissions in reply to the submissions made on behalf of the appellant apart from
informing the court he supported the conviction.

As regards ground one, namely that the learned trial commissioner misdirected himself
by failing to treat PW 1 as a witness with a possible interest of his own to serve whose
testimony should have been treated with caution, we are satisfied that this ground, on the
evidence on record was well taken. PW 1 and the appellant were the last persons seen in
company of the deceased when still alive the evening before her body was found in the
bush. He was therefore in a category of a suspect witness. The learned trial
commissioner never addressed his mind to this aspect anywhere in his judgment and not
even a mention of it was made. This, we agree, was certainly a misdirection.

The submission on ground two was that there was no direct evidence connecting the
appellant with the commission of the offence apart from the confession statement which
should in any event, have been excluded on the ground that during the trial-within-a-trial
only one witness was called when the allegation of assault was levelled at two police
officers. In the alternative, it was submitted that the learned trial commissioner should
have exercised his discretion to exclude the statement on the basis that shortly before the
confession was made the appellant was subjected to some force by messengers and
villagers. The case of Musongo v. The People (1) was cited in support of this alternative
submission. We hasten to observe that although there was no direct evidence connecting
the appellant with the offence there was in addition to the warn and caution statement
leading the prosecution witness to the recovery of the deceased’s body. But the calling of
the second prosecution witness in the trial-within-a-trial would have been desirable but
not necessary if the prosecution had already proved its case.

As regards the alternative submissions on ground two we note that the appellant was
interrogated, among others, by PW 3, a messenger by occupation, but what was said to
PW 3 was not part of the prosecution case. In the circumstances the authority of
Musongo case does not therefore assist the appellant.

We have examined the trial commissioner’s ruling in the trial-within-a-trial. We note

that to satisfy himself that the appellant made the statement he had to look at it. On
account of the details in the statement he was satisfied that the appellant made it. This, in
our view, was a wrong approach to the determination of the voluntariness of a challenged
statement. We have also noted that in his ruling the learned trial commissioner accepted
that the alleged torture of the appellant must have been before the police became involved
in the investigation, hence, the alleged torture could not have influenced him to make a
statement. Mr. Munthali’s submission is that the court should have exercised its direction
to exclude the statement on the ground that shortly before the confession was made the
appellant was subjected to some force. We are inclined to agree with this submission. In
this judgment the evidence of the confession will therefore be excluded.

122
One of the submissions on the main ground of appeal, namely the defence of insanity, is
that, before the trial started, the appellant was referred to Chainama hospital for
examination. The argument on this ground is that the trial commissioner’s observation
that the issue of insanity was raised very late in the proceedings was erroneous. We
agree with this submission. We also note from the record that PW 2 was cross-examined
at great length as to the appellant’s mental state. We further note that PW 3 was also
questioned at some lengthy by the court as to the mental condition of the appellant. In our
view this shows that before and during trial both the defence and court were anxious as to
the appellant’s mental condition at the time of the commission of the offence.

The learned trial commissioner rejected the doctor’s opinion on the basis that he was
supplied with “raw material” which was “pure deceit”. In our view, this was an incorrect
assessment and a serious misunderstanding of the doctor’s examination of the appellant
on which he based his opinion. We wholly agree with the commissioner that ‘the real
value of the evidence of a medical expert consists in the logical inferences which he
draws from what he had himself observed, “… but we would also like to accept that
when doctors examine a patient in the course of their duties, they make notes and that any
doctor would be able to make an opinion based on those notes.

In the instant appeal the crucial evidence of the doctor was that he is a consultant
psychiatrist. He talked to and examined the appellant. He made certain observations:
“flattening effect and vacant look.” The doctor had access to the tests carried on the
appellant by other doctors and clinical psychiatrists apart from what he himself carried
out. The doctor’s evidence was also to the effect that the appellant was likely to have
been mentally disturbed at the time of committing the offence. On the material that was
before him, the doctor said; “In my opinion Mr. Joseph M. Tobo suffers from
“Psychiatric illness………

On the material that was before the doctor we are unable to say that his opinion or his
report for that matter lacked logical inferences. There is nothing wrong or unacceptable
for a doctor to take into account what a patient has told him in forming his opinion, let
alone what other doctors have recorded about a patient. In our view the leaned trial
commissioner seriously misdirected himself in his analysis of the doctor’s evidence and
his opinion in relation to the defence of insanity.

In the case of Mushanga v The People (2) this court had had the opportunity of
considering the doctor’s evidence in relation to the defence of insanity. We said in that
case:

“On an issue of mental disability, the medical evidence

presented to the trial court may or may not be conclusive. However the court is bound to
consider the medical evidence together with all other relevant evidence. Its quality and
weight will be assessed in light of all the other facts and circumstances of the case. But,
as the cases which we have already mentioned indicate, medical evidence will usually be
considered to be more reliable than the assertions by or on behalf of an accused. In this

123
regard we are satisfied that the submissions, to the effect, that the doctor’s opinion in this
case should be over turned hold no attraction for us.”

In the instant appeal the finding that the opinion of the doctor was vacant was not
supported by the evidence, particularly nothing that the prosecution did not challenge his
opinion. We agree with the submissions on behalf of the appellant that on the balance of
probabilities the defence had proved that the appellant was suffering from a disease of the
mind at the time of the commission of the offence. We are satisfied on the other hand
that, even if the confession was excluded the circumstantial evidence adequately
connected the appellant with the commission of the offence. For the reasons we have
stated we enter a verdict of not guilty by reason of insanity and order that the appellant be
detained at the President’s pleasure. To that extent the appeal is allowed. It also follows
that the decision reported at (1985) ZR.158 is over ruled.

Appeal allowed.

124
AMBROUS MUDENDA v THE PEOPLE (1981) Z.R. 174 (S.C.)

SUPREME COURT
GARDNER, AG. D.C.J., BRUCE-LYLE, J.S. AND MUWO, AG. J.S.
20TH, 21ST MAY AND 21ST OCTOBER, 1980
(S.C.Z. JUDGMENT NO. 23 OF 1980)

Flynote

Evidence - Confessions - Statement by accused contested - Effects of failure to make a

ruling.
Evidence - Confessions - Voluntariness challenged - Need for trial within trial to be
instituted.

Headnote

The appellant was convicted of aggravated robbery and appealed against the conviction
and sentence. A police officer attempted to tender in evidence a warn and caution
statement taken from the appellant and this was resisted by the defence counsel and a trial
within a, trial was conducted. The appellant in the course of his defence in the trial within
a trial, stated that he never made a statement of admitting the charge but was forced to
sign it and at that stage, the learned State Advocate raised the point that in the evidence of
the appellant voluntariness was not in issue and therefore there was no need for the trial
within a trial to continue. The learned defence counsel agreed to this

p175

submission whereupon the learned trial judge made a ruling agreeing with the submission
of the learned state advocate and discontinued the trial within a trial on the ground that
the issue raised by the appellant was a general issue and the warn and caution statement
of the appellant was then accepted in evidence. When put on his defence, the appellant
stated that he knew nothing about the alleged offence and also that he knew nothing
about the money, the gun and the screw driver.

The learned trial judge after deciding to ignore the confession statement of the appellant,
believed the evidence of the prosecution witness and rejected the denial of the appellant
and convicted and sentenced the appellant to death after accepting that a firearm had been
used in the robbery. On appeal:

Held:

(i) The appellant by contesting the warn and caution statement in the abortive trial
within a trial raised the issue of voluntariness and the trial within a trial
therefore should have been continued and a ruling made on that issue.

125
(ii) The appellant's statement that at the police station he was beaten up with boots
on the back and chest raised the issue of voluntariness and the trial judge
should have started a new trial within a trial to find out whether the warn and
caution statement was voluntarily made by the appellant.

(iii) The appellant's defence that the police officer was not a truthful witness was a
pertinent issue.

(iv) The non-holding of the trial within a trial was prejudicial to the appellant and
made the proceedings a mix-trial.

Case referred to:

(1) Lumangwe Wakilaba v The People (1979) Z.R. 74.

For the appellant: G. T. Moruthane (Miss); Assistant Senior Legal Aid

Counsel.
For the respondent: K. C. V. Kamalanathan; Senior State Advocate.
_____________________________________
Judgment

BRUCE LYLE, J.S.: delivered the Judgment of the court. The appellant was convicted of
aggravated robbery and has appealed against the conviction and sentence.

The prosecution's case was that on the 16th March, 1979, Mr Ferreira Mostert PW1 and
his wife PW2, retired to bed about 2100 hours and after a short time PW2 went to the
toilet and then PW1 followed to the bathroom to drink water. PW1 was returning from
the bathroom/toilet when at the door, he heard a gun shot and so he went back into the
bathroom and shut the door. He then realised that the shot had come from inside the
house and so he remained in the bathroom for some time and then got out and went to the
bedroom door but found that it had been locked from the inside although he had earlier
on left it open.

p176

PWs1 and 2 then went outside the house and called out for the watchman PW6, and then
PWs 1 and 6 went behind the house and there heard second shot and then PW1 saw a
man run out of the house into the nearby bush. It was not possible for PW1 to recognise
this man but PW2 his wife, immediately suspected the appellant who had been working
for them and had been helping in the house. PWs 1 and 2 then drove to neighbour's farm
(Muller's farm) where they telephoned to the police after which PW1 sent a watchman at
the farm PW3, to go and look for the appellant. PW1 then drove out with one Morrison
Chilebwe PW4 and on the way to the appellant's house, they picked up PW3. At the
house of the appellant they knocked on the door and the appellant came out and they
immediately apprehended him and drove him to Muller's farm where they locked him up
in a room in charge of PWs 3 and 4. According to PW3, while PW1 was away, he talked
to the appellant through an open window and the appellant told him that he had fred the

126
shots to threaten PW1 and that he had stolen money from the house and had thrown it
away when he saw PW1 chasing him, that the appellant told PW4 to go for the money
and to give K50 of it to his wife. PW3 further stated that he then went to where the
appellant had indicated and saw the money in a white cloth and that he took it and hid it
in a maize field. PW3 stated that he went alone to look for the money because he had
heard PW4 and the appellant discuss about sharing it but that he wanted to retrieve it for
PW1; he further stated that he later or informed PW4 that he found the money and had
hidden it. PW4 Morrison Chilebwe confirmed that the appellant had told him and PW3
where he had hidden the money.

When PW1 had left the appellant in the charge of PW3 and 4, he went to his house where
he found police officers PWs 8 and 9. According to PW9 he examined the house of PW1
and found that a cabinet in which money was alleged to have been kept, was forced open
and also that he noticed a bullet hole in a window in the bedroom. PW9 farther stated that
he collected the appellant from Muller's farm and that in the house of the appellant he
picked up a wet pair of trousers and then took the appellant back to the police station; that
after questioning, the appellant led him to a place where he alleged he had hidden the
money but nothing was found there and the appellant told him that the money could have
been takers by either PW3 or PW4 as he had told them where the money was; that PWs 3
and 4 were subsequently questioned and PW3 led him to where he had hidden the money
and that the money was found wrapped in a white jacket. PW9 further stated that after the
money had been discovered the appellant again directed him to a place where he stated he
had thrown away the gun he had used and that the appellant searched the area and got the
gun which he handed over to him and that he found a spent cartridge in the chamber of
the gun and two live cartridges; that he took the appellant back to PW1's house where the
money was counted and found to be K1,822.30n; that the appellant was taken back to his
house where he picked up a screw driver which he stated he had used to open the steel
cabinet in PW1's house.

p177

PW9 the police officer attempted to tender in evidence a warn and caution statement
taken from the appellant and this was resisted by the defence counsel and a trial within a
trial was conducted. The appellant in the course of his defence in the trial within a trial,
stated that he never made a statement but was forced to sign it and at that stage, the
learned State Advocate raised the point that in the evidence of the appellant voluntariness
was not, in issue and therefore there was no need for the trial within a trial to continue.
The learned defence counsel agreed to this submission whereupon the learned trial judge
made a ruling agreeing with the submission of the learned Sate Advocate and
discontinued the trial within a trial on the ground that the issue raised by the appellant
was a general issue and the warn and caution statement of the appellant was then
accepted in evidence. In that statement the appellant admitted that he stole the money
after threatening PW1 with a gun which he had got from the house of PW1 when he had
worked there. When put on his defence, the appellant stated that he knew nothing about
the alleged offence and also that be knew nothing about the money, the gun and the screw
driver. He also denied having told PWs3 and 4 that he had taken the money and hidden it.

127
He further stated that PW3 having been found in possession of the money, was capable of
telling lies to exculpate himself; that PW9 the police officer, also told lies when he stated
that he the appellant had led him to a place where he had produced the gun and also that
the appellant had produced the screw driver at his house. In answer to a question by the
court, the appellant stated that he was beaten up at the police station after the money and
gun had been recovered. The learned trial judge after deciding to ignore the confession
statement of the appellant and we shall deal with his reasons for so doing later on this
judgment, believed the evidence of the prosecution witnesses and rejected the denial of
the appellant and convicted and sentenced the appellant to death after accepting that the
firearm had been used in the robbery.

Miss Moruthane, Assistant Senior Legal Aid Counsel, argued this appeal on several
grounds for reasons which would be apparent at the end of this judgment, we do not
propose to give any ruling on those grounds. After learned counsel for the appellant had
finished with her submissions we raised a point with the learned Senior State Advocate
regarding the course adopted by the learned trial judge in discontinuing with the trial
within a trial as it affected the evidence of PW9 in the rest of the trial. The conviction of
the appellant in our view depended to a very great measure on the reliance placed on the
credibility of PW9 the police officer. PW9 stated that as a result of what the appellant
told him he went with the appellant to a place where the appellant stated he had hidden
the money and when the money was not found the appellant told him that he had earlier
on admitted to PWs3 and 4 that he had stolen the money and had shown PWs3 and 4
where he had hidden it and that as a result PW3 led him and other police officers to
where he had hidden the money after he had retrieved it from where the appellant had
earlier on directed him and that PW3 produced the money which was wrapped in a white
jacket. Appellant in his defence

p178

denied these aspects of PW9's evidence and stated that PW9 had not told the court the
truth. PW9 further stated that he went to the appellant's house and that in the presence of
the appellant he searched the house and found a screw driver and that the appellant told
him that he had used the very screw driver to open the steel cabinet in PW1's house from
which he had taken the money. The appellant denied that he had ever gone to his house
with PW9 and that the screw driver did not belong to him. PW9 still further stated that
the appellant had led him to a spot where he had hidden the gun which he had used for
the robbery and that the appellant had gone into the bush and produced the gun. The
appellant denied having gone with PW9 to look for the gun. The evidence of PW9
relating to the finding of the gun, money and screw driver formed the basis for the
conviction of the appellant and the findings of the learned trial judge rested solely in our
new, on the credibility of PW9.

The appellant in his evidence in the abortive trial within a trial, stated that he never made
the alleged warn and caution statement and that he was forced to sign it. This evidence on
the authorities, raised the issue of voluntariness and the trial within a trial therefore
should have been continued and a ruling made on that issue. Again the appellant in his

128
evidence in defence, to a question by the court stated that at the police station he was
beaten up with boots on the back and chest. The issue of voluntariness was in our view
again raised and the learned trial judge should have on the authority of Lumangwe
Wakilaba v The People (1) started a new trial within a trial to find out whether or not the
warn and caution statement though already admitted in evidence, was voluntarily made
by the appellant. The trial within a trial having been wrongly discontinued and this was
conceded to by the learned trial judge in his judgment, and trial within a trial not having
been held when the issue of volntariness was again raised in the defence, the learned trial
judge rightly in our view disregarded the confession statement in his judgment.

However, the learned trial judge having found his conviction of the appellant on the
evidence of PW9 the police investigating officer, the appellant's defence that PW9 was
not a truthful witness was a pertinent issue. It can be argued that the confession statement
having been ignored by the learned trial judge and the learned trial judge having heard
and observed PW9 was not in error in finding as a fact that PW9 was a credible witness
and that this court can only disturb that finding if in the opinion of this court, it is not
supported. PW9 stated that the money was found wrapped in a white jacket which
belonged to the appellant and although the appellant admitted that the jacket belonged to
him, we find that PW4's evidence that the money was wrapped in a white cloth was in
direct conflict with that of PW9. There was an indirect suggestion by the appellant that
PW9 in his evidence introduced the white jacket to make the case against him conclusive;
this conflict was never resolved by the learnd trial judge. The appellant in his defence
denied having led PW9 to a spot and denied having produced any gun to PW9; he also
denied accompanying PW9 to his house and denied handing any screw driver

p179

to PW9. The trial within a trial not having been concluded and in the absence of another
necessary trial within a trial, we are not in a position to say whether or not PW9 would
have inevitably been found to be a credible witness in relation to the confession
statement. If in the trials within a trial PW9 had been found not to be a credible witness
that finding would in our view, have substantially affected the determination of the issue
of PW9's credibility in the rest of the trial. If on the other hand, PW9 had been found to
be credible in the trials within a trial that finding would substantially support the finding
of the learned trial judge in his final judgment. It is therefore our view that the non-
holding of the trials within a trial was prejudicial to the appellant and makes the
proceedings in this case a mis-trial. This in our view, affects substantially the finding of
fact by the trial judge as to the issue of credibility of PW9. The learned Senior State
Advocate Mr Kamalanathan, has conceed that this case be remitted to the High Court for
a re-trial, but Miss Moruthane for the appellant, has argued that the appeal be allowed
and there should be no order for a re-trial.

Having held that there has been a mis-trial we consider that the appropriate course in the
interest of justice, would be to remit the case to the High Court for re-trial. This appeal is
therefore allowed; the conviction is quashed and the sentence is set aside. We further

129
order that this case be remitted to the High Court for a re-trial by a different judge of the
High Court.

Retrial ordered

130
CHIMBO AND OTHERS v THE PEOPLE (1982) Z.R. 20 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, J.J.S.
27TH JULY AND 24TH AUGUST, 1982
(S.C.Z. JUDGMENT NO. 23 OF 1982)
APPEAL NO.123 OF 1980

Flynote

Evidence - Accomplices - Danger of false implication - Whether one suspect witness can
corroborate another.
Evidence - Confessions - Admissibility of - Proof of use of force through medical reports.
Evidence - Identification - Recognition - Whether need to rule out possibility of honest
mistake.

Headnote

The appellants were convicted of murder. They were alleged to have taken the deceased
and his wife from their home, severely beaten them up and left them in the bush, naked,
tied up and gagged.

p21

The deceased was rendered unconscious and later died. The prosecution witnesses were
the accused's wife, who identified the appellants as the culprits, and the driver of the
truck which transported the appellants, a self confessed accomplice. The appeal was
against the admissibility of confessions of the first and second appellants and the
identification of the third.

Held:

(i) The evidence of suspect witness cannot be corroborated by another suspect

witness unless the witnesses are suspect for different reasons.

(ii) The court must give proper consideration to all issues in deciding whether
confession is voluntary, and may not disregard a medical report in the absence
of expert medical evidence to justify a belief that a severe beating must produce
more serious injuries since the degree of injury is irrelevant to whether a
confession was obtained by force.

(iii) Although recognition is accepted to be more reliable than identification of a

stranger, it is the duty of the court to warn itself of the need to exclude the
possibility of an honest mistake.

131
(iv) For purposes of identification, a proper identification parade must be arranged.

Cases referred to:

(1) Nikutisha and Anor v The People (1979) Z.R. 261.
(2) Mushala and Ors v The People (1978) Z.R. 58.
(3) Mwasumbe v The People (1978) Z.R. 354.
(4) Choka v The People (1978) Z.R. 243.
(5) Musupi v The People (1978) Z.R. 271.

For the first appellant: P. C. Zulu, Zulu and Co.

For the second appellant: C. K. Banda, Lisulo and Co.
For the third appellant: L. J. A. Mwamasika, Legal Aid Counsel.
For the respondent: K.C. Chanda, State Advocate.
___________________________________
Judgment

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

The appellants were convicted of murder. The evidence for the prosecution established
that on the night of 20th August, 1978, the deceased and his wife, PW2, were collected
from their house in George compound, Lusaka, by three men dressed in army uniform.
They mere taken to an army truck in which the driver, PW4, was waiting. Two of the
men and the deceased got into the cab of the truck while the third man and PW2 sat at the
back. PW4 then drove the truck along the Kabwe Road eventually branching off into
bush road leading to Kaluwe. All the while the two men who had got into the cab were
beating the deceased while the third man was beating PW2, demanding to be told where
the deceased kept his money. PW4 stopped the truck at some point on the bush road
already referred to. The deceased and PW2 were

p22

taken out of the truck by the three men in question. They were stripped naked and then
beaten up very severely indeed be those men who kept demanding to be told where the
deceased kept his money. The trio then robbed the deceased and PW2 of various items
before leaving them in the bush unconscious, naked, tied up, and gagged. The following
morning PW2 regained consciousness and observed that her husband was still
unconscious She walked naked and bound to the Kabwe Road where a passing motorist
untied her and referred her to a farmhouse nearby. With the help of the owner of the farm
and others the matter was reported to the police who collected the husband who was still
unconscious and remained in that condition at the hospital where he was taken until he
expired on the 29th August, 1978. According to PW4, a self-confessed accomplice, after
the deceased and PW2 had been left in the bush he had driven the three men back to
George compound where they collected a number of articles from the decease's house.
They had also shared some money, and PW4 was given some. After dropping of the
others near their residences he had decided to keep quiet about the whole incident.
Investigations by the police led to the apprehension of a number of soldiers, including

132
PW4 and the first and second appellants. The second appellant was released after
questioning on 29th August, 1978, only to be re-taken into custody the next day. An
identification parade was conducted and PW2 identified the first and second appellant as
two of the men involved in the attack upon her and the deceased on the night of 20th
August, 1978. Thereafter the police recorded confession statements from the first and
second appellants which were admitted in evidence after trials within the trial, to which
statements we shall revert in a moment.

Further investigations led to the apprehension of the third appellant who consistently
denied the charge. The third appellant was made to sit on bench at the police station with
the first and second appellants and a fourth man. PW2 was then specifically asked by the
police to identify from among them the third assailant who, she was told, had not
previously been on the identification parade, and she duly recognised the third appellant
as such third man. We must say that this was a most undesirable procedure to adopt when
a proper identification parade could easily have been arranged. We agree with the
submission made by Mr Mwamasika that identification obtained in this manner should
generally he viewed as unsatisfactory, if not worthless. The learned trial judge took the
view that this situation was similar to the one that arose in Nikutisha & Anor v The
People (1), and that therefore while proper parade would have been preferable, PW2 had
nevertheless recognised a person she had seen on two different occasions prior to the date
of the incident and as the third assailant who was with her at the back of the truck driven
by PW4. In Nikutisha (1) the police did not deliberately invite the witness to identify.
There, it was by sheer chance or accident that a witness was allowed to be in a position
where he was able to see the suspects arriving at the police station, and before the event
could be stopped, the witness identified one of the suspects

p23

who he had already described. It seems to us that no legitimate parallel can be drawn
between the situation in Nikutisha (1) and the one in this case.

The matter, however, goes much further than this. The learned trial judge was satisfied
that in respect of the third appellant identification by PW2 had been by way of
recognition and was, therefore, reliable. While recognition has been accepted to be more
reliable than identification of a stranger, the trial judge should nevertheless remind
himself that mistakes in recognition even of close relatives or friends are sometimes
made, and hence the need to exclude the possibility of an honest mistake. If PW2's
opportunity for observation on the night in question was no better in relation to the third
appellant than it was in relation to the co-appellants, it follows that, even if the case fell
to be considered as one of recognition., it was the duty of the trial judge to warn himself
of the need to exclude the possibility of an honest mistake. The learned trial judge did not
so warn himself, and his failure to do so was a misdirection. There is a string of
authorities to this effect, such as Mushala & Ors v The People (2), Mwasumbe v The
People (3), and other cases therein referred to. It follows from this conclusion that the
conviction of the third appellant can only stand if, in relation to him, we can apply the
proviso. Since consideration of this aspect raises issues common to all three appellants,

133
we propose to revert to it after we have dealt with those grounds of appeal of the first and
second appellant as did not affect the third appellant.

Both the first and second appellants have argued that their confession statements were
wrongly admitted. The first appellant had challenged his warn and caution statement on
the ground that the police had assaulted him in order to compel him to confess. His
allegation that the beatings had lasted several days was disbelieved. The learned trial
judge believed the police officers who denied the allegations of torture and assault. The
first appellant had attended a clinic for three weeks and produced a medical report in
which findings consistent with his allegation were recorded. He had also exhibited to the
court a scar alleged to have been caused by the police, and another old scar on which he
alleged the police had struck him causing it to give him trouble. In his ruling the learned
trial judge argued that had the first appellant been assaulted as severely as he alleged he
should have sustained more injuries than the medical report disclosed. He also clearly
misapprehended the first appellant's evidence concerning the old scar when he made a
finding that the first appellant had falsely claimed that it, too, had been caused by the
police. No finding was made in relation to the more recent scar nor was any consideration
given to the substance and effect of the uncontroverted medical report which was
produced. Counsel for the first appellant has submitted that these circumstances the
confession statement should not have been admitted. Since similar considerations arise in
the case of the second appellant we shall return to this submission in a moment.

p24

The second appellant also alleged that he had been beaten in order to confess. He, too,
produced a medical report which supported his allegations and which set out the injuries
he had sustained. He had even complained to the magistrates. The learned trial judge
disbelieved the second appellant for the reason that had he been assaulted as severely as
he alleged, the medical card should have listed more injuries than it did, and that the
injuries should have been more serious. Mr Banda has submitted that the issue before the
court was an allegation of beating and to dismiss such allegation on consideration of the
seriousness or degree of injury was to beg the question. He pointed out also that this was
a man who had been questioned and released the day prior to the recording of the
confession, and it was argued that the trial judge should have questioned why he should
confess when he had not done so the previous day. As in the case of the first appellant no
consideration was given to the substance and effect of the medical report. The complaint
to the magistrate and the failure to confess on the first occasion received no mention in
the learned trial judge's ruling. Counsel submits that in these circumstances the second
appellant's confession statement was wrongly admitted.

There is 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 more serious injuries. We do not see that such an argument is even
relevant to an inquiry concerned with an allegation that confession was extracted by

134
force. The issues which we have already referred to were material and called for
consideration if 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 learned 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 their admission was misdirection. The convictions can
only stand if we can apply the proviso, and to this end we now proceed to examine
whether the rest of the evidence was such that had the trial judge not misdirected himself
he must inevitably still have convicted.

The only evidence connecting the appellants with the commission of his offence came
from PWs 2 and 4. PW4 was clearly an accomplice and the learned trial judge quite
properly found him to be such. The greatest danger to be guarded against in the case of
true accomplice is the danger of false implication, and it is therefore on the question of
the identity of his companions that greatest care is called for to ensure that that danger
has been excluded. The learned trial judge found that

p25

PW4's evidence on identity was corroborated by that of PW2. Counsel have argued that
this could not be so. It was pointed out that in relation to PW2 the learned trial judge
made two important findings; the first being a finding that she was a suspect witness for
the reason that she may have had motive to falsely implicate the appellants, and the
second being the finding that her evidence on identification was unreliable on the ground
that the circumstances surrounding the events that night did not provide an opportunity to
make reliable observations. The effect of the first finding was to place PW2 in the same
category as PW4 to the extent that the approach to their evidence would be similar since
the danger to be guarded against was exactly the same. The learned State Advocate
attacks the first finding on the ground that there was no evidence to support it, and that it
would appear from a reading of the relevant passage in the judgment that PW2 attracted
this fairly unfavourable classification simply because she was the wife of the deceased. It
is the duty of trial judge, if the circumstances so dictate, to make a finding regarding the
status of any particular witness, and while different witnesses can be suspect for different
reasons, it obviously does not follow that witness must be regarded as suspect merely
because she happens to be the wife of the victim. We do not apprehend from the
judgment below that PW2 was found to have motive to falsely implicate solely for being
a wife. The learned trial judge had the advantage of seeing and hearing the witness at first
hand and, as a result, he concluded that PW2 may have had such a motive. We must
assume, unless the contrary is too obvious, that trial judge sitting alone as a trier of fact
evaluates the evidence and the demeanour of the witnesses as reasonably as would joy
properly directed and acting reasonably. At any rate, unless it appears quite plainly that
finding is perverse or one which no tribunal acting reasonably could have come to, it is
not open to this court to substitute findings. It has not been shown to us that the learned

135
trial judge had made a finding attracting those criticisms as would justify reversal by
this court and, accordingly, we must now proceed to examine the submission made that
PWs 2 and 4 could not, in the circumstances, corroborate each other.

This submission is entirely valid. There are circumstances when the evidence of one
suspect witness could be corroborated by the evidence of another suspect witness
provided of course that not only is the suspicion for different reasons but the one
supplying corroboration or both of them must be what one might call, for lack of a better
expression, an innocent suspect witness. An illustration of this distinction would be
where one witness is a true accomplice and the other an innocent bystander whose
evidence of identification is not free from the danger of an honest mistake and is for that
reason only a suspect witness. Where however, as in this case both witnesses may have
the same dangerous motive of false implication, the witnesses could not in these
circumstances corroborate each other, and each would require corroboration or support
from some independent witness or other circumstance amounting to something more. The
case of Choka v The People (4) which counsel cited is in point. However, we must point
out that the principle that one

p26

suspect witness could not support the evidence of another suspect witness was related
specifically to the circumstances of that case where the witnesses were suspect for the
same reason; that is, they both had possible interests of their own to serve. That case and
indeed several others (see for example, Musupi v The People (5)) underline the principle
that in every such case the danger of false implication must be excluded before a
conviction can be held to be safe. In the circumstances of this case the approach to the
evidence of PWs 2 and 4 must be the same. There being no other evidence of such weight
that any court would certainly have held that if excluded the dangers of relying on their
evidence, there can be no question of applying the proviso. The convictions cannot stand.
The appeals are allowed.

Appeals allowed

136
1980 ZR p219
THE PEOPLE v B (1980) Z.R. 219 (H.C.)

HIGH COURT
SAKALA, J.
4TH JULY, 1980
HP/24/80

Flynote

Evidence - Confession statement - Admissibility - Basis for admissibility.

Headnote

A trial within a trial was conducted to determine the admissibility of a confession

statement; allegedly made by the accused. The accused related incidents of torture and
duress before making the statement. He applied that the statement be excluded.

Held:

(i) It is a fundamental principle of criminal law that when an accused raises an

objection to the introduction of a confession into evidence, alleging that it was
not made freely and voluntarily on account of assaults, threats or inducements,
the burden of proving that a confession is voluntary is on the prosecution and
at no time does this burden shift to the accused.

(ii) The basis of the admissibility of a confession is voluntariness and not the truth
of the content in the statement.

1980 ZR p220
SAKALA J

Cases referred to:

(1) R. v Kalyata (1963-1964) Z.R. 84.
(2) Zondo & Ors v The Queen (1963-1964) Z.R. 97.
(3) Kabwiki & Ors v The People (1974) Z.R. 78.

For the State: C. Kawamba Esq., Director of Public Prosecutions.

For the accused: E. N. A. Togbor, Esq., Ellis and Co.
_____________________________________
Judgment

SAKALA, J.:

At this early stage in the trial, the prosecution are seeking to introduce into the evidence a
statement recorded from the accused on the 15th and 16th August, 1979, by Assistant

137
Commissioner of Police, Mr Muyunda, under warn and caution at Central Division
Headquarters, Kabwe. The defence have objected to the introduction of the statement into
the evidence on the ground that it was not made freely and voluntarily alleging that the
accused was assaulted and induced into making the statement. A trial-within-a-trial was
held to determine the voluntariness of the statement.

PW1, both in the main trial and in the trial-within-a-trial testified that he took part in the
investigations of the case involving the accused person. He saw the accused first towards
the end of April, 1979, at a prison house that was established in Sikanze Camp. He spoke
to him for about two hours. In May he instructed Senior Superintendent David Ng'ambi
to record a warn and caution statement from the accused. The warn and caution statement
revealed that the accused declined to say anything. The Commissioner stated that from
the CID's point of view the investigations in the case had come to an end. however, some
time in June, 1979, he visited Lusaka Central Prison. While in the prison a number of
prisoners were brought into the area where he was waiting. The accused also came in; he
greeted him. According to the Commissioner the accused explained that he had seen his
chap sent to record a statement from him. The Commissioner said he told him that he had
seen the statement but it had nothing useful. The Commissioner explained that the
accused told him that the reason was that Superintendent Ng'ambi had put to him
questions as though he was waging a war on Zambia. As they chatted the accused told
him that he wanted to get things off his chest. But the Commissioner told him that if he
wished to make a further statement it could be taken at a later stage because at that time
he was busy and he also wanted to find out whether it was possible. The Commissioner
returned to his office. He asked Senior Superintendent Ng'ambi for the docket. He went
through the warn and caution statement recorded by Superintendent Ng'ambi once again.
After consulting the Judge's Rules the Commissioner said it was possible to obtain
another statement from the accused if he so wished. By then the accused had been
transferred to Kabwe. He sent a message to Kabwe. On the 15th August, he proceeded to
Kabwe where he recorded the warn and caution statement from the accused in the
presence of Detective Inspector Mungala. He spoke to the accused in English. Before
recording the statement he warned and cautioned the accused that he had given a
statement earlier and that he

1980 ZR p221
SAKALA J

was cautioning him further. The recording commenced at 1415 hours and adjourned at
1630 hours to the following day. On the following day the 16th August, 1979, the
recording of the statement continued from 1440 hours to 1600 hours. The Commissioner
explained that at the end of the recording he put some questions to the accused. This was
intended to clear some ambiguities and to obtain certain facts which he thought were
relevant and also to clear certain issues that were of public interest. He said prior to the
recording of the statement he had asked the accused whether he wanted a lawyer present.
But the accused asked him to proceed with the recording. According to the Commissioner
the atmosphere at the time of recording the statement was friendly. He testified that the
statement was made freely and voluntarily. He did not see anybody assault the accused.

138
He did not induce the accused to make the statement nor did anybody else. The
Commissioner told the court that he heard of the accused person having been assaulted by
members of the public at the time he attempted to escape from the Lusaka Central Prison
between the 24th and 25th April, 1979.

In cross-examination the Commissioner stated that he was aware that on the 4th May, Mr
Ng'ambi interrogated the accused and that the accused declined to say anything.
According to the Commissioner, it was not odd that on the 15th August, 1979, he should
have cautioned the accused in order to clear points arising from a statement he had not
made. He said the accused did not show any ill feelings when he earlier spoke to him
apart from complaining about Superintendent Ng'ambi's questioning. The Commissioner
further stated that after consulting the Judges' Rules, he did not see anything prohibiting
him from recording a further statement from the accused. He denied that he put pressure
on the accused in order to obtain the statement of the 15th August, 1979. He said he was
not satisfied with the accused's declining to make a statement on the 4th May. But there
was nothing that he could have done at that time. According to the Commissioner when a
person declines to make a statement and further questions came up which lead him into
saying something he would not call that pressure. He said the long lapse between the 4th
May and 15th August, 1979, was due to his absence as he was out of the country. The
Commissioner also explained that Martin was the accused's corroborator who was
considered as an accomplice at the time of the statement. In the Commissioner's view, it
was a normal practice to introduce an accomplice to a person from whom a statement was
to be recorded. The Commissioner denied conducting a private interrogation in a store
room immediately before the recording of the statement. The Commissioner also told the
court that arrangements had been made for the 8th June and 9th August for Mr Fluck to
attend the recording of the statement. But on both these days he was not around Lusaka.
He testified that it would be false to allege that he interrogated, tortured and humiliated
the accused between the 1st April and August when the statement was recorded. He
conceded that during the period that he was in and out of the country he would not know
if other officers tortured or humiliated the accused. He said he was not in a position to
deny that the accused was tortured. He could not remember the period

1980 ZR p222
SAKALA J

the accused attended the hospital. He is not aware of any interrogation centre. But he is
aware of a temporary prison that was established in Sikanze Camp. He is also not aware
of an interrogation centre otherwise known as "the house". He explained that blankets are
put over the heads of persons taken for interrogation for security precautions. The
Commissioner also stated that at the time he saw the accused he looked healthy and fit
other than for the injuries sustained front the abortive prison escape. He denied clapping
the accused on the head and neck when he first saw him. He also denied asking officers
to stop torturing the accused on account of the accused's screaming. The Commissioner
further explained that if anybody made promises to the accused he would not have
known. But the accused being a sane and normal person he would have said so after the

139
caution. He was not aware that other officers interrogated the accused between the 4th
May and 15th August, 1979.

PW2 testified that in August, 1979, he was stationed at Kabwe Police Station. He is
aware that a warn and caution statement was recorded from the accused on the 15th
August, in Kabwe by Mr Muyunda. There were only three people present the third being
the accused. The accused was warned and cautioned before the statement was written
down. The recording commenced at 1415 hours on the 15th August, adjourned to the
following day at 1620 hours. On the 16th August, the recording continued from 1440
hours and ended at 1700 hours. The Inspector recognised the signature of Mr Muyunda
and the accused on the statement. He did not see anyone assaulting the accused on the
15th or 16th August, 1979. He denied that either he or Mr Muyunda promised or induced
the accused person to make a statement. He said the accused was not forced to make a
statement It was a free and voluntary statement. He took no part in the investigations of
the case, his role was to witness the recording of the statement. In cross-examination he
said his signature was not on the statement. But he was present when the statement was
recorded. He said he signed the statement but he could not see his signature. He could not
know if anybody assaulted the accused before the recording of the statement neither
would he have known if anybody promised the accused anything.

PW3, a prison officer, told the court that on the 23rd April, 1979, he was not on duty. But
at about 1730 hours he was coming from Sikanze Camp. On approaching the prison on
his way to his house within the prison camp he heard a lot of noise from inside the prison
and from the southern part of the prison alleging that somebody had escaped. He went
around the prison. At the southern part of the prison outside the prison wire fence he saw
many people lifting the accused and throwing him back into the prison fence. He jumped
into the prison fence and joined some army, police and prison officers who were
separating the people who were demanding for the accused whom they alleged to be
Smith. He did not see the accused being beaten. But he observed a swollen eye with
blood on his face. There were more than fifty people around, women and children. He
handed over the accused to the chief officer and left. The witness explained that the
accused was in prison under a

1980 ZR p223
SAKALA J

Police detention order dated 4th April, 1979. This witness produced the prisoners record
in relation to the accused.

At the end of the evidence for the prosecution in the trial-within,-a-trial, the accused, who
gave his occupation as a pilot, also gave evidence on oath. He testified that on the 1st
April, 1979, he was detained at the airport. He was interrogated and searched at the
airport and taken to Lusaka Central Police Station. He denied making a free and
voluntary statement. He explained that at the police station he was put in the cells until
the 4th April. He was later served with a detention order and taken to Lusaka Central
Prison. The week following he was taken on several days from the prison to the Police

140
headquarters where he was interviewed in a room. He remembers Superintendent Ndayo
as among the persons who interviewed him. There were on this occasion seven other
officers but he could not remember their names. These officers took turns in asking
questions. According to the accused the interview lasted generally two hours in the
mornings and two hours in the afternoons with lunch break when he would be taken back
to the prison. The week commencing 16th to 20th April, 1979, he was again taken from
the prison to Police headquarters where he was again interviewed basically by the same
people. According to the accused the purpose of the interviews was to obtain information
from him. He said he answered every question that they asked but some of the officers
chose not to believe the answers. He was helpful as he could. He could not remember the
4th May, 1979, but on the 24th April, a statement was taken from him in relation to the
attempted escape. He also said that during the first week of June an attempt to make a
statement was made. On the 22nd June, another attempt to make a statement was made.
On the 15th and 16th August, he was asked to make a statement. In the course of
interrogations in the attempts to obtain statements he was subjected to physical violence
and assaults. On the 25th May he was convicted and imprisoned in the Lusaka Central
Prison. Before lunch on that date he was called from the main part of the prison to the
reception where he was handcuffed and leg-irons put on him and blindfolded. There were
armed men in military uniforms. He was removed from the prison and driven away. He
said he was in very great anxiety. After a short journey in a car he was removed and led
into a building, still blindfolded. He was left sitting, still blindfolded for several hours
until what; he took to be evening time. The blindfolds were removed but not the
handcuffs and leg irons. He found himself seated on the floor in front of four men, among
whom was Superintendent Ndayo. The room had one door leading to it, the windows
were all blanketed off. One of the men said "good evening Michael, we now have you for
five months and we can talk to you about the subjects we wish until you tell us what we
want to hear." The accused explained that from that point interrogations proceeded which
were to last continuously for over ten days and from then after a period of some months.
Each interrogation lasted continuously until the following morning. He said he was
deprived of sleep, food and toilet facilities. He was not interrogated by the same people.
He remembers seeing main teams of three people coming into

1980 ZR p224
SAKALA J

the room for periods between one to three hours or four hours before being relieved by
another team while other people entered the room but not attached to any team. He said
all this took place at a place called the interrogation centre which name he learnt from
talking to other prisoners. He stated that the people who interrogated him appeared to
believe that he was engaged in intelligence gathering mission against Zambia.
They appeared to him to be interested in gathering names of people in Zambia who they
thought were enemies of the State. They spent, according to him a long time talking
about the white farming community. He was returned back to the central prison on the
4th June, 1979, which was a Monday. On the 5th or 6th June, 1979, he was taken from
central prison to Kabwata Police Station where he was taken into a room. A Police officer
by the first name of "David" said that he wished to take a statement from him. The

141
accused stated that the officer read out a long and horrifying statement of alleged crimes.
He told him that he did not want to make a statement. He explained that he was taken to
Kabwata Police Station in handcuffs and leg irons and blindfolded. He was put at the
back of a Land - Rover where he was made to lie on the floor and a blanket put over him.
On 7th June, he was again called to the reception where he went through exactly the same
sequence as on the 25th May. After another journey of about twenty minutes he was led
into a building, the blindfold was removed. The accused testified that between the 12th
and 20th June, he had lost about forty to fifty pounds in weight. He had severe internal
problems which he assumed to be from the severe beatings he received. He was passing a
lot of blood through diarrhoea and when urinating. He said he was physically in a very
weak condition. He asked the prison authorities for medical attention. There was no
doctor or medical assistant available in prison. They took him to the University Teaching
Hospital under armed escort. He was examined and some tablets were prescribed to help
the internal problem. He also gave the doctor the samples. An appointment had been
made for him to see the same doctor but before the appointment he was removed from
Lusaka Central Prison. On the 21st or 22nd July, 1979, he was taken back to the house.
When the blindfold was removed he found himself in the same room. There were seven
men whom he recognised to be from the different interrogation teams. Others told him
that they wanted him to identify somebody. A blanket was put over his head when the
blanket was removed he observed that Superintendent Ndayo was in the room with an
African man from whom a blanket was similarly removed at the same time.

Superintendent Ndayo warned and cautioned both him and the African and asked them if
they recognised each other. He denied knowing the African. The African initially said
"No" but later said "Yes". This other man was said to be Martin. Superintendent Ndayo
then recorded a lengthy statement from the African in the accused's presence. The
accused said the African man made incriminating statements against him. After the
African made the statement he was removed from the room. One of the interrogating
teams came in and said "Right you have heard the evidence against you now we want a
statement from you." He told them that he had never seen the man before. After a period
of a couple of days he was subjected to torture. He was fairly beaten extensively

1980 ZR p225
SAKALA J

and burnt with cigarettes for about four times. He was dished into ice water, deprived of
sleep and food throughout the whole period. A plastic bag was held over his head with
little air which did not last very long. A piece of wire at one stage was introduced into his
urethra also known as the tube of the penis. He said he was kicked but not with boots. At
one stage he was beaten with a hose from an ordinary garden hose. He also stated that he
was beaten extensively around the genital and anal regions. This was done by a number
of officers. There were over twenty people at different times half a dozen specialised in
torturing anal also half a dozen specialised in being friendly. He said some of the officers
appeared embarrassed by what was going on. He said at a later stage when he was in
Kabwe Maximum Security Prison at different times, some officers from the Zambia
Army and Air Force came to interrogate him and openly apologised for some of the

142
behaviour that was going on. He said on the first occasion he was subjected to an electric
shock. According to the accused all these were aimed at making him say that he knew the
man "Martin" and to make a statement to corroborate him. He explained that when he
was first taken to the house one of the officers took out a pistol and loaded it; made him
to kneel on the floor and said "This is your last chance, tell us now or I am going to shoot
you."

The accused also told the court that in the month of July very little happened to him apart
from being in solitary confinement. He further testified that the first time he met
Assistant Commissioner Muyunda was on the 25th May in the early hours of the 26th.
This was at the house. On that occasion the Commissioner told him that he was a very
high ranking police officer stating that he knew who the accused was and what he had
been doing. He said he needed a confession from him in order to take the matter to court.
The Commissioner also told him that he was very annoyed as he was making him work
on holidays. When he had wanted to spend the time with his son. The accused said he
made some remarks as to how his son was. The Commissioner then said "Don't get it
funny with me." He then hit the accused on the side of the face.

The accused also testified that immediately prior to the 15th August, when the statement
was taken without any notice, an armed guard came into the court yard of the prison and
told him to put on a pair of shorts and a shirt. He was then blindfolded, removed from the
prison to some kind of a closed truck. After a very short journey the blindfold was
removed he then found himself in a room where there were two or three Police officers
present, one he recognised as David. After a short while an African was brought into the
room similarly handcuffed. The Superintendent introduced him as Martin. He was taken
back to the prison over lunch time. He was again taken from the prison in a similar
fashion as in the morning. At about 1345 hours the blindfold was removed and he found
himself in company of three men dressed in military uniforms, two of them were armed.
He was jostled for a period of five to ten minutes. A lot of remarks of him being a white
racist and an enemy and an agent were made. The Commissioner came to the room and
the jostling stopped. Mr Muyunda shook hands with him. He asked how he was doing

1980 ZR p226
SAKALA J

and he referred to the introduction of an African in the morning and said he wanted to
take a warn and caution statement from him. The Commissioner told him that if they get
this out of the way and he co-operated he could arrange to have him removed from
solitary confinement and to wear clothes again. He also told him that he will issue
instructions to treat him as a human being again. The Commissioner further told him that
they had friends of his in custody including some pilots and stewards of Botswana
Airways. He further told him that this case was causing a lot of disruption and has caused
Botswana Airways to stop operating for several weeks to this country. The Commissioner
further pointed out that if he co-operated these men would be released but if he did not he
would be taken back to the house and eventually a statement would be made. Five
minutes after the conversation the recording of the statement commenced. The accused

143
told the Commissioner that if he was going to make a statement he would like Mr Fluck
to be present but the Commissioner explained to him that he was involved in an
espionage case and that there would be no lawyers in Zambia who would be prepared to
represent him. The blindfold was put back on him and he was removed upstairs escorted
by the armed guards. He found himself in a small office. The Commissioner then read a
lengthy caution to him and in a period of two days, the accused said he produced a
statement that he thought was satisfying. He said the contents of the statement were not
true and were made to satisfy his interrogators. The accused stated that at that time
considering what he had gone through in May and June and to go through them again, he
was confused in his mind and thought he was lucky to be alive. He also knew at that time
that several pilots who were his friends were held in different stations. He knew that at
one period when he was in the house there was a woman present in the house whom he
assumed to be in some sort of custody. He was also told that apart frown the pilots of
Botswana Airways, some stewards and airhostesses were also held. He said these facts
concerned him greatly. He thought of a woman especially going through anything to
which he had been subjected to. He said his morale was at the lowest ebb of his life. He
also thought of being in solitary confinement in a jail in the middle of Africa apparently
at a complete mercy of people who could shift him from place to place at will. He had
been told that he had no legal representative. He said it seemed to him that the only thing
he had to do was to ride along with a tide of events in the hope that at some stage his
circumstances would become public and he could be in touch with either the British High
Commission within this country or arrange for some firm of legal representatives. He
considered himself to have been in a very perilous condition. He denied telling the
Commissioner that he made a statement to get things off his chest. He said he had
nothing to get off his chest. According to the accused the statement was not made either
freely or voluntarily. He was left with no doubt whatsoever that if he refused to make it,
life would become much harder than it already was. He said at that period of his life he
had never been more worried. In cross-examination the accused explained that he was
detained at Lusaka International Airport on the 1st April, 1979, when he was about to

1980 ZR p227
SAKALA J

board a flight. He went through the usual immigration formalities. He had his passport.
He explained that his occupation involved travelling around the world and in some areas
like South East Asia and part of Africa it is an occupational necessity to have more than
one passport. He admitted that he had two passports but he has no idea where the other
passport is. The other passport is in the name of Borlace. The accused further testified in
cross-examination that he told a Muyunda lies in the statement of the 15th August, 1979,
to insure that he was not taken back to the house to be beaten. He knew what to say as it
became something like a parrot would say. The accused explained that the beatings
ceased at the end of June but things had not changed. He was kept in solitary confinement
in extreme discomfort. He also testified that he flies helicopters, heavy engine planes as
well as military and civil aircrafts. He has served in the armed forces for a period of more
than nine years. He underwent military training which meant he also underwent survival
technics in the armed forces and he was also taught to withstand discomfort. In 1976 he

144
was decorated for gallantry in Rhodesia. He said the beatings started on the 21st May,
and ended at the end of June. He stated that despite the fact that he had been in the armed
forces for nine years and decorated for gallantry being kept in solitary confinement can
have effect on any person of any calibre. He told the court that Superintendent Ndayo
was present everytime he was interviewed prior to the attempted escape. He [Ndayo] did
not personally assault him although he must have known what was going on in the house.

At the end of his evidence the accused called Mr Fluck who appears on record as DW2.
Mr Fluck's evidence related to his various unsuccessful attempts to see the accused
person at the time he was in custody. He also testified to his various unsuccessful
attempts to arrange with the Police to be present whenever they wanted to record a warn
and caution statement from the accused. Mr Fluck testified that on the 31st July, he
attended at Kabwe Maximum Prison where he was allowed a very short interview with
the accused. At first he found it difficult to recognise him. He had lost a considerable
amount of weight. He found his morale at a very low ebb. At that time he found it
difficult to carry out any conversation with the accused as there were four other prison
officers in the room. But the accused informed him that he was in solitary confinement
and was at that time in leg irons. Mr Fluck's evidence is on record and I do not find it
necessary to go through it in detail. Suffice it however to state that despite the various
arrangements that were made between him and the Police to be present at the time of
recording the statement he never attended the sessions.

The foregoing is both the prosecution and defence evidence in this trial-within-a-trial. At
the end of the defence evidence both learned counsel made submissions. On behalf of the
accused Mr Togbor has submitted that the defence objection to the introduction of the
statement is based on the ground that it was neither freely nor voluntarily made in that it
was induced during a period of some five months between April and August, 1979. He
contended that during this period the accused was subjected to solitary confinement,
frequent assaults and violence to his person. He

1980 ZR p228
SAKALA J

further contended that during the same period the accused was subjected to humiliation,
deprivation of the normal human needs, namely, sleep, food and refreshments. Mr
Togbor also argued that the accused was induced into making the statement by torture,
threats and promises. In the alternative Mr Togbor contended that even if the court was
to hold: that the statement was voluntary the court still has discretion to exclude it if it
was obtained in circumstances amounting to the breach of the Judges' Rules. He
submitted that in the instant case there were a number of breaches of the Judges' Rules for
instance the caution introducing Martin whom the prosecution did not call and the refusal
of the Police to have the accused represented at the time of recording the statement. On
behalf of the State, the learned Director of Public Prosecutions submitted that the accused
was never assaulted, the only assault he suffered was at the hands of the members of the
public at the time of his attempted escape from lawful custody. It was the learned
Director of Public Prosecutions' contention that the stories of assaults, movements of up

145
and down, as well as promises are all false. With regards to the prosecution's failure to
call Martin the learned Director of Public Prosecution pointed out that this man is and
was a suspect in the case and is in detention; thus the State would not have been so
foolish to call him as a witness. With regards to the assaults the position of the learned
Director of Public Prosecutions is that the State had asked the defence for names of who
assaulted the accused. Since the defence did not do so, the learned Director submits that
the accused was not assaulted ads alleged. It is the learned Director's contention that the
Judges' Rules were not breached. In the alternative, the learned Director submitted that if
the accused was assaulted as contended by the month of July those assaults had ended
and the promises, inducements as well as the beatings if true, must have been removed by
the time the warn and caution statement was obtained from him on the 15th August,
1979.

I have very seriously addressed my mind to all the evidence in this trial-within-a-trial. I
have also very carefully considered all the submissions by both counsel. It is common
ground that the accused was apprehended on the 1st April, 1979, at Lusaka International
Airport subsequently detained pursuant to a Police detention order. It is also common
ground that while in custody, the accused attempted to escape as a result of which he was
prosecuted for escape from lawful custody, convicted and sentenced to eight months by
the subordinate court of the first class for the Lusaka District. It is further common
ground that on the 4th May, 1979, a warn and caution statement was recorded from the
accused at Kabwata Police Station by Superintendent Ng'ambi in which the accused told
the Superintendent that he did not wish to say anything at that stage. But despite that, the
Superintendent proceeded to ask the accused some questions. It is common cause that on
the 15th and 16th August, 1979 Assistant Commissioner Muyunda recorded a warn and
caution statement from the accused person at Kabwe Division Headquarters. The
statement was witnessed by Inspector Mungala but he did not sign it. The law governing
the admissibility of confessions into a criminal trial has been the subject of discussion in
several cases that it is now settled

1980 ZR p229
SAKALA J

(see para. 138C, Archbold 39th ed.). There are several authorities cited under that
paragraph that I do not consider it necessary to make this ruling as a treatise on principles
governing admissibility of confessions. Be that as it may, on account of the cross-
examination adopted in this trial-within-a-trial and also on account of the issues raised in
the submissions, it becomes imperative to briefly state some of those principles relevant
to the issues raised in this trial-within-a-trial.

It is a fundamental principle of criminal law that when an accused raises an objection to

the introduction of a confession into the evidence, alleging that it was not made freely
and voluntarily, on account of assaults, threats or inducements, the burden of proving that
a confession is voluntary is on the prosecution (see headnote in R v John Kalyata (1)). At
no time does this burden shift on to the accused. Thus in Zondo & Ors v The Queen (2)
Conroy, C.J., at p. 100 stated:

146
 "It is trite law that when the Crown seeks to put in a
confession the burden rests on the Crown to establish, beyond a reasonable doubt that the
confession was made freely and voluntarily, and that the prisoner was not induced by any
promise of favour, or any menace or undue terror, to confess. It is also trite law that a
judge has a discretion to exclude a statement, even though freely and voluntarily made
and otherwise admissible, if he considers it was taken in circumstances unfair to the
accused. Thus it confession, freely and voluntarily made, is sometimes excluded in the
exercise of this discretion if there has been a breach of the Judges' Rules."

In the same case Charles, J, at p. 108 made the same point in the following words:

"The rule of law governing the admissibility of extra-judicial

incriminating statements by accused persons may be stated shortly as being that such a
statement is not admissible in evidence against the maker upon his trial on a criminal
charge unless it is proved, beyond reasonable doubt, to the presiding judge that the
statement was made without any inducement by a person in authority whereby the
accused was led to believe that it would be his duty, or it would be to his temporal
advantage to make a statement, or it would be to his temporal disadvantage not to make a
statement, when the opportunity became available to him. "

Following upon these principles the Court of Appeal in the Zondo case among others
held that in deciding whether a statement made by an accused person to the Police is
admissible, the test which a court must apply is not whether the Judges' Rules have been
infringed, but whether the prosecution has affirmatively established that the statement
was made freely and voluntarily. It follows that all the accused has to do at his trial is to
raise the issue of voluntariness.

In the instant that it would appear to me that a Martin named in the caution as well as in
one of the counts in the information must be a vital witness for the prosecution. The
reason given by the learned Director for

1980 ZR p230
SAKALA J

not calling him in this trial-within-a-trial when according to him, he is in detention, is,
with greatest respect, unsatisfactory and certainly unconvincing in a case of this
magnitude. The accused has made very serious allegations which centre on this Martin. I
cannot say these allegations have been challenged. In my humble opinion to argue that
the defence were offered assistance to give names of the accused's assailants to enable the
prosecution to call them and testify against the accused overlooks the above cited
principles and begs the question. This is a very serious case, investigated and prosecuted
by the highest officers of the State. I cannot accept that the learned Director is not in a
position to know which officers were involved in the investigations of this case. In any
case Superintendent Ndayo's name has come out as a person present at all the
interrogations. Why has he not been called ?

147
The basis of the admissibility of a confession is voluntariness and not the truth of the
content in the statement. Thus in the case of Kabwiki and Ors v The People (3), at p. 82,
Baron, D.C.J., observed:

"The probabilities are that the confessions of the second and

third appellants were the truth. But the issue is not truth but voluntariness. Our law is
clear, and the cases are legion, that even though the court; may be satisfied that what an
accused person has said in a statement to the police is in fact true, that statement is in
admissible as evidence unless the prosecution prove that it was freely and voluntarily
made. Thus in Zondo and Others v R Charles J. said at page 113: 'The basis upon which
evidence of an incriminating statement is excluded in the absence of proof of the
condition of admissibility is not that the law presumes the statement to be untrue in the
absence of such proof, but because of the danger which induced confessions or
admissions present to the innocent and the due administration of justice. That danger has
been aptly pointed out by the American authority on evidence, Professor Wigmore
(Evidence, Vol. 4, section 2250) in the following passage:

The real objection is that ant system of administration

which permits the prosecution to trust habitually to compulsory self-disclosure as a
source of proof must itself suffer morally thereby. The inclination develops to rely mainly
upon such evidence, and to be satisfied with an incomplete investigation of the other
sources ...ultimately the innocent are jeopardised by the encroachment Off a bad system.'
"

In Zondo case again Charles, J, at p. 108 said:

"The leading authorities for that statement, are Regina v
Baldry [1852] 2 Den. 430, and Regina v Thompson [1893] 2 Q.B. 12, both of which
have received the approval of the Privy Council in Ibrahim v The King [1914] A.C. 579
and again only recently, in Sparks v R [1964] 1 All E.R. 727. According to those
authorities

1980 ZR p231
SAKALA J

the basis upon which evidence of an incriminating statement

is excluded in the absence of proof of the condition of admissibility is not that the law
presumes the statement to be untrue in the absence of such proof, but because of the
danger which induced confessions or admissions present to the innocent and the due
administration of justice."

It follows that in this trial-within-a-trial the truth or the falsity of the contents of the
statement should at least at this juncture not be the concern of this court. My concern
therefore is whether the accused made the statement freely and voluntarily.

148
The prosecution in support of the contention that the statement was made freely and
voluntarily have called three witnesses. The evidence of PW 1, Assistant Commissioner
of Police, Mr Muyunda, who recorded the statement from the accused person reveals that
he first saw the accused towards the end of April, 1979, at a prison house. He again met
the accused sometime in June, 1979, at the prison when he went for some investigations
nothing to do with the accused. On that occasion according to the Commissioner he had a
chat with the accused person in which the accused is alleged to have told the
Commissioner that he wanted to get thigh off his chest. The Commissioner told the court
that he explained to the accused that if he wished to make a further statement it could be
recorded at a later stage because he was at that time busy and he wanted to find out
whether it was possible. The next time, according to the Commissioner when he met the
accused was on the 15th August, 1979, at Kabwe when he recorded he statement.
According to the Commissioner's earlier evidence he was assigned to take part in what
was known as the Borlace case about the middle or end of April. We do not know the
other members of the investigations. But I have no doubt the Commissioner knows them.
In as far as PW2 is concerned, he had nothing to do with the investigations of the case
involving the accused. His role was merely to witness the recording of the statement by
the Assistant Commissioner of Police. For reasons not apparent to this court he did not
sign the statement. He gave no explanation for the omission, neither did the
Commissioner give one. In as far as PW3 is concerned, his evidence is not in dispute. He
witnessed the assault on the accused person by the members of the public when he
attempted to escape from lawful custody. Both Assistant Commissioner of Police as well
as Inspector Mungala who witnessed the recording of the statement, conceded that they
are not in a position to say whether the accused had bee assaulted and tortured by other
officers. Equally they were not ifs a position to say whether any inducements were made
to the accused person. This in my view was a commendable frankness on the part of these
witnesses.

From the prosecution evidence, it is quite clear that PW1 could not be said to have been
involved in the investigations of this case to a great extent although assigned to take part.
But the Commissioner insisted that the statement was made freely and voluntarily.

The case for the defence is that after spending almost four days in the police cells at
Lusaka Central Police Station the accused was taken to

1980 ZR p232
SAKALA J

Lusaka Central Prison on 4th April, 1970. The week following according to the accused
he was taken for several days from the prison to police headquarters where he was
interviewed in a room. Among his interviewers he remembers Superintendent Ndayo.
There were seven officers present. They took turns in questioning him. The interview
lasted two hours in the morning, two hours in the afternoon with a lunch break when he
would be taken back to the prison. It is also the defence case that between lath and 20th
April, he was again taken from the prison to police headquarters where he was again
interviewed basically by the same people. The accused said the purpose of the interview

149
was to obtain information from him. The accused has alleged that in the course of these
interrogations he wads subjected to physical violence and assaults. It is also the case Or
the defence that on the 25th May after the accused's conviction and imprisonment for
escaping from lawful custody he was taken from Lusaka Central Prison handcuffed, leg-
ironed and blindfolded and driven away. At that time he was in very great anxiety. After
a short journey in a car he was removed and led into a building still blindfolded. He was
left sitting still blindfolded for several hours. After the blindfolds were removed he found
himself seated on the floor in front of four men among whom was Superintendent Ndayo.
It is the accused's contention that from that point interrogations proceeded continuously
for ten days. He had no sleep, no food and no toilet facilities. These interrogations are
alleged to have taken place at an interrogation centre. The accused said he was returned
to the central prison from the interrogation centre on the 4th June, a Monday. On the 5th
or 6th June he was taken from the prison to Kabwata Police Station where a Police officer
by the name of David was to record a. statement from him but he declined to make a
statement. On the 7th June, the defence allege that the accused was again taken from
Lusaka Central Prison, blindfolded to a house where the interrogations were again carried
out. On the 21st or 22nd July, he was taken from Lusaka Central Prison to the house
blindfolded. When the blindfold was removed there were seven men whom he recognised
to be from the different teams that interrogated him earlier. A blanket was put over his
head. When it was removed he observed that Superintendent Ndayo was in the room with
an African from whom a blanket was similarly removed. Superintendent Ndayo
cautioned both of them and then asked each of them if they recognised each other. The
accused denied. The African agreed after initially having denied. This man was said to be
a Martin the accused's accomplice. According to the accused Superintendent Mayo
recorded a statement from Martin incriminating the accused. Later an investigating team
came in and said "Right you have heard the evidence against you, now we want a
statement from you." He said after this incident he was beaten extensively and burnt with
cigarettes. A plastic bag with little a was put on his head, a piece of wire was introduced
to his urethra. The accused also told the court that at the first occasion he was subjected
to an electric shock. He also testified to at incident when a revolver was loaded in his eye
and threats mom to shoot him. The accused said very little happened in the month of July
after this incident apart from solitary confinement. In solitary confinement he was
handled with leg irons on and kept knelled. The accused explained that in the month of
July,

1980 ZR p233
SAKALA J

Kabwe was very cold. According to the accused he first met the Assistant Commissioner
of Police on the 25th May, in the early hours of 26th at the interrogation centre. The
Commissioner told him that he needed a confession from him in order to take the matter
to court. It is on that occasion when the accused alleged that the Commissioner hit him on
the side of the face. According to the accused on the 15th August, the day of the
statement he was called by a guard. He was requested to put on a pair of shorts and shirt.
He was blindfolded and taken from the prison in a closed truck. After a very short
journey the blindfold was removed, he found himself in a room where there were two or

150
three Police officers present. One he recognised as David. After a short while an African
introduced as Martin was brought in. Thereafter he was taken back to the prison. In the
afternoon he was again called from the prison, blindfolded. When the blindfold was
removed, he found himself in the company of three men dressed in army uniforms two of
whom were armed. He was jostled, for a period of five to ten minutes. The Commissioner
then came into the room and informed him that he wanted to take a warn and caution
statement. He told him that if he co-operated he would arrange that he would be removed
from solitary confinement. He would wear his clothes again and be treated as a human
being again. The Commissioner is also alleged to have told him that his friends were in
custody resulting in the disruption of Botswana Airways.

The accused told the court that the contents of the statement were not true. They were
made to satisfy his interrogators. He said considering what he had gone through in May
and June, he was not prepared to go through that again. The accused concluded his
evidence in chief by saying that it seemed to him that the only thing he was to do was to
ride along with a tide of events in the hope that at some stage his circumstances would
become public. He said the statement was not made either freely or voluntarily
contending that he was left with no doubt whatsoever that if he refused to make it life
would have become much harder than it already was.

I have already observed that the burden of proof is on the prosecution. The accused's
story raises numerous issues for consideration. Most of them have not been challenged by
the prosecution. As a matter of fact no single question was put to the accused in cross-
examination about his alleged movements in and out of prison. Why was the accused
taken so often out of prison between April and June when at times he was kept out of
prison for several days? The accused said he was taken for interrogation. He says it was
during the period of interrogation that he was assaulted, tortured and threatened. The
prosecution has not challenged these allegations by any evidence. If the prosecution's
case is that the accused was not taken out of prison they could have easily proved this
point by leading evidence from the prison officers at Lusaka Central Prison. This the
prosecution has not done. I hate no alternative but to accept the accused's story that he
was taken out of prison on several occasions for purposes of interrogations. The
prosecution has called no single witness from the interrogation teams; not even
Superintendent Ndayo who was specifically mentioned by the accused. Again

1980 ZR p234
SAKALA J

I have no alternative but to accept the accused's allegations of torture and assaults. The
accused has alleged that while at Kabwe Maximum Prison he was kept naked in a cell in
solitary confinement in the cold month of July. Not a single witness from Kabwe
Maximum Prison has been called to rebut this allegation. It is on record unchallenged. I
have again no alternative but also to accept this allegation. In short I find that the entire
defence case has not been shaken in a material aspect.

151
This being the case, I find as a fact that the accused was assaulted physically and
mentally humiliated, kept in solitary confinement naked in order to induce him to make a
statement. I am unable to say that these matters have been removed by the time the
accused made his statement on the 15th and 16th August, 1979. This being the case, I
hold that the statement recorded from the accused by the Assistant Commissioner of
Police on the 15th and 16th August, 1979, under warn and caution was not made freely
and voluntarily. As such I refuse to admit it in evidence.

I must confess that I have come to this conclusion not with any hesitation but with
considerable regret. I say this because it is probable that the confession is the truth. But as
already pointed out, the issue is not truth but voluntariness. According to our law even
though a court may be satisfied that what an accused person said in a statement to the
Police is in fact true, that statement is inadmissible as evidence unless the prosecution
prove that it was freely and voluntarily made. The prosecution has failed to prove this in
the instant case. Accordingly I rule that the statement recorded from the accused on 15th
and 16th August, 1979, under warn and caution by PW1 is inadmissible as evidence.

Statement inadmissible

152
THE PEOPLE v 1. EDWARD JACK SHAMWANA AND 12 OTHERS (1982) Z.R.
122 (H.C.)

2. VALENTINE SHULA MUSAKANYA

4. GOODWIN YORAM MUMBA
5. ANDERSON KABWALI MPOROKOSO
8. THOMAS MUPUNGA MULEWA
10. DEOGRATIAS SYMBA
11. ALBERT CHILAMBE CHIMBALILE
12. LAURENT KANYEMBU RODGER KABWITA (1982) ZR 122 (HC)

HIGH COURT
CHIRWA, J.
22ND NOVEMBER, 1981 AND 20TH JANUARY, 1983
(HP/166/1981)

Flynote

Criminal law and procedure - Amendments - Whether court has power to

p123

itself amend information at close of prosecutor's case - Matters to be considered in

amending - Effects of acting under wrong provisions.
Criminal law and procedure - Conspiracy - Whether necessary to prove overt act of
treason beyond reasonable doubt - Proof by inference - Whether acceptable.
Criminal law and procedure - Defences - Defence of duress in misprision of treason -
Whether available.
Criminal law and procedure - Offence - Treason - Continuous offence - When terminated.
Criminal law and procedure - Treason - Invisible alternative charges - Effect of striking
off count of misprision of treason.
English law - Application - locally - Interpretation of English Law (Extent of
Application) Act.
Evidence - Accomplices - Corroboration - Need for - Who can corroborate accomplice
evidence - When lies may be corroboration.
Evidence - Confessions - Statements taken in breach of Judge's rules - Whether court has
discretion not to admit.
Evidence - Judicial notice - When evidence not required to prove.
Evidence - Witnesses - Overt acts in treason - Requirements for witnessing of.
Tort - Duty of care - Lawyer and client relationship - Extent of duty owed.

Headnote

The eight accused were charged with five others, with the offence of treason arising from
eleven overt acts. One accused was also charged with misprision of treason but this was
struck out after a preliminary objection. One accused was struck off the information on

153
account of illness. At the close of the prosecution case, and after submissions of no case
to answer, four of the accused were acquitted. The defence case rested mainly on proof
of the case against them beyond reasonable doubt. Several issues arose during the trial.

Held:

(i) Misprision of treason being an invisible alternative charge and hence a minor
offence maybe struck off before pleas are taken without misleading the defence
or amounting to an acquittal.

(ii) The High Court has the power to itself amend an information to fit the evidence
given without application by, or consultation with the parties involved provided
no injustice is caused to the accused such as may result when the substantive
charge is altered even at the no case to answer stage. And reference to the
wrong section as the source of power for the court to amend the information
does not nullify the power so existing.

(iii) The English Law (Extent of Application) Act, Cap.4, is an enabling Act in that
in the absence of any legislation in Zambia

p124

on any subject, the English statutes before 17th August, 1911,

will apply in Zambia; and in interpreting a statute one has to look at the law existing
when it was passed and the mischief intended to be cured.
(iv) Act No. 35 of 1973 is the law applicable in Zambia, not the
English Treason Act of 1795; therefore in relation to treason, there is no special
requirement as to the number of witnesses to testify before one is convicted.
(v) The court may take judicial notice of facts which are common
knowledge and in doing so may simply refer to its own record; for it would be folly for it
in an appropriate case to keep aloof on such facts.
(vi) Upon convicting on the evidence of an accomplice the court
must warn itself of the danger of so convicting and if the evidence is not corroborated by
other independent evidence then the risk of false implication must have been excluded so
that it was safe to depend on the accomplice's evidence.
(vii) There is no rule of law that an accomplice cannot corroborate
a fellow accomplice provided the dangers of joint fabrication are eliminated;
corroboration need not be so in the strict sense but even "something more" such as
evidence of lying by the accused.
(viii) The court has a discretion to exclude a confession obtained in
breach of the judge's rules and operating unfairly against the accused.
(ix) Where as in the present case conspiracy is laid down as an
overt act in a treason charge, this must be proved first before acts of one conspirator are
taken to be acts o of the other conspirators in furtherance of a common design.

154
(x) It is the duty of a lawyer to defend his client no matter how
serious the crime is but that duty does not extend to helping the client escape justice or
assisting in preventing the course of justice.
(xi) The defence of duress or compulsion is available to a charge
of treason or misprision of treason only where it can be shown that the offence was
committed by two or more people that the threat of injury to the person pleading the
defence was not in the future but imminent and that the threat was present throughout the
commission of the offence, in this case continuously since the offence was a continuous
one.

Cases cited:
(1) R. v Manchinelli 6 N.R.L.R. 19.
(2) Charles Phiri v The People (1973) Z.R. 168

p125

(3) Nkole v The People (1977) Z.R. 351.

(4) R. v Smith [1950] 2 All E.R. 449.
(5) R. v Johal & Ram [1972] 2 All E.R. 449.
(6) Harris v R. 62 Cr. App. Rep. 28.
(7) Wallwork v R. 42 Cr. App. Rep.153.
(8) Re Mayfair Property Company [1898] 2. Ch. 28.
(9) MacMillan and Company v Dent [1907] 1 Ch.107.
(10) Commonwealth Shipping v Penninsular and Oriental Branch
Service [1923] AC 191.
(11) Craven v Smith (1869] L.R. Exch. 146.
(12) Emmanuel Phiri and Others v The People (1978) Z.R. 79.
(13) DPP v Kilbourne [1973] 1 All E.R. 440.
(14) Credland v Knowles Cr. App. Rep. 48.
(15) Mvula v The People (1963-64) Z.N.R.L.R. 171.
(16) R. v Callaghan 69. Cr. App. Rep. 88.
(17) R. v Straffen [1952] 2 Q.B. 911.
(18) R. v Prager [1972] 1 All E.R. 1114.
(19) R. v Walson [1980] 2 All ER 293.
(20) Callis v Gun 48 Cr. App. Rep. 36.
(21) Herman v R .52 Or. App. Rep. 353.
(22) Lester and Howard v. R. (1960) R.&N. 700.
(23) Quinn Leathem [1901] A.C. 495.
(24) R. v Doot [1973] 2 W.L.R. 532.
(25) R. v Griffiths [1965] 2 All E.R. 448.
(26) Mulenga and Others v R. (1960) R.&N. 12.
(27) R. v Lucas [1981] 3 W.L.R. 120.
(28) R. v Hudson and Taylor [1971] 2 All E.R. 244.
(29) Lynch v Director of Public Prosecutions [1975] 1 All E.R.
913.

155
Legislation referred to:
Criminal Procedure Code, Cap.160, ss.137 (f), 181, 213, 273 (2).
English Law (Extent of Application) Act, Cap.4, s.2.
Indictments Act, 1915 (England) s.5 (1).
Penal Code, Cap.146, ss. 16,26 (4), 43 (1) (a), 44 (b).
Penal Code Amendment Act, No.35 of 1973, s.3.
Treason Act, 1795 (England), s.5.

For the State: G. G. Chigaga, Attorney-General, J. A. Simuziya, Director of

Public Prosecutions, G. Sheikh and S.Balachandran, Senior State Advocates.

p126

For the first accused: In person.

for the second accused: J.M.Mwanakatwe and B. C. Willombe, M.M. W.
and Co.
For the fourth accused: G. Chilupe, Jacques and Partners.
For the fifth accused: R. Mushota, Lusaka Partners.
for the eighth and twelfth accused: W. A. Mubanga, Permanent Chambers.
For the tenth accused: R. Mandona, Permanent Chambers.
For the eleventh accused: C. Sakala, Legal Aid Counsel .
___________________________________
Judgment

CHIRWA, J.:

The eight accused persons were originally arraigned together with five others. One of
them was struck off the information on account of illness and the other four were
acquitted after the clause of the prosecution case and on submissions of no case to
answer. To avoid confusion with the evidence, these eight accused will continue to be
referred to either by name or original numbers, viz: Edward Jack Shamwana (accused l),
Valentine Shula Musakanya (accused 2), Goodwin Yoram Mumba (accused 4), Anderson
Kambwila Mporokoso (accused 5) Thomas Mupunga Mulewa (accused 8), Deogratias
Symba (accused 10) Albert Chilambe Chimbalile (accused 11) and Laurent Kanyembu
Roger Kabwita (accused 12).

On the original information, all accused were charged with one count of treason, contrary
to s. 43 (1) (a) of the Penal Code, Cap.146 and the particulars of that offence were
composed of eleven overt acts. Accused number 5 was charged with an additional count
of misprision of treason, contrary to s. 44 (b) of the Penal Code, Cap. 146. However after
a preliminary objection on the information as laid, this count of misprision of treason was
struck off the information so that the trial proceeded on one count of treason against all
the accused.

The trial started on a very slow pace as there were a number of preliminary matters and
objections and my ruling on these matters are on record and it would be a waste of time

156
for me to repeat these but where there is need to repeat some portions of the same in this
judgment, I will do so. When we settled down to getting evidence, the prosecution called
a total of 122 witnesses in the main trial. This obviously necessitated the trial to be very
long, but the progress made can only be attributed to the co-operation given to the court
by the parties concerned and for this I am very grateful.

At the close of prosecution case and after submissions of no case to answer, I ruled that
the present eight accused had a case to answer; accused numbers, 1, 2, 4, 8, 10, 11 and
12, on one count of treason having four overt acts. Accused 5 had a case to answer on
misprision of treason having been acquitted on the treason count. After my ruling on no
case to answer there were further submissions on the court's power to ascend the
information and my ruling on this is also on record. After this ruling fresh pleas of not
guilty were entered and after rights to re-call any

p127

prosecution witnesses were outlined to the accused; they all elected not to recall any
witnesses.

Having put the accused on their defence on the amended information, their rights were
explained to them as to how to conduct their defence cases, they all, except accused 11,
elected to remain silent and called no witnesses on their behalf. Accused 11 elected to
give evidence on oath and called no other witness. After the close of defence case 1 heard
final submissions.

Before I consider the evidence in this matter. I feel a quick look at the law affecting this
case is necessary. I will start with the effect of striking off the count of misprision of
treason from the information on application by the defence as this affects accused number
5 it being the count on which he was put on his defence on the information as amended
on submissions of no case to answer.

In my ruling, of 3rd December, 1981, I ordered that counts 2 and 3 be struck off from the
information as they were embarrassing to the accused persons involved and that, they
were prejudiced in the sense that they could not make any proper defence. No plea had
been taken on the information and after the counts were struck off the accused were not
arraigned on them. To me the striking off of the counts did not amount to an acquittal as
an acquittal can only come about on either offering no evidence or insufficient evidence
being led, not proving the count alleged. The striking out of the counts meant that the
accused did not stand trial on those counts.

After the information was amended at the no case to answer stage, Dr Mushota further
submitted and also in his final submissions, that the defence had been misled in that they
thought that since the count of misprision of treason had been struck off, the accused was
acquitted and they could not prepare their defence to cover the misprision of treason. I
cannot help it if the defence misled themselves in law and the court did not misrepresent
any facts on the matter. I am still of the considered view that on the principle of possible

157
"invisible alternative charge", misprision of treason was one of those "invisible
alternative charges". The invisible alternative charges as put the

R v Manchinell (1) by Bell C.J., are minor offences. In this regard I wish to refer to the
case of Charles Phiri v The People (2) particularly at p. 171 where Baron, D.C.J., had this
to say on construction of s.181 of the Criminal Procedure Code:

"With the greatest respect to Bell, C.J., we are unable to see

how it can be a necessary requirement that a matter getting under subsection (2) must
also fall within the ambit of subsection (1); if that had been the intention of the legislature
the section would have been framed quite differently and in such a way as to make it
clear that in every case not only must the facts constituting a minor offence be proved but
also the particulars of such a minor offence must be contained as part of the particulars
of the

p128

offence charged. It is difficult to see in such circumstances

why subsection (2) would be necessary at all. The two subsections seem to us to
contemplate two different cases, the first is where the offence consists of several
particulars and some particulars of these particulars constituting another offence are
proved, the second is where none of the particulars of the offence charged is proved but
facts are proved which disclose another offence. We must therefore with respect
disapprove that portion of the judgment in R v Manchinelli ( 1 ) and disapprove also of
the judgment in Justin to the extent that it appears to adopt the earlier dictum."

At p. 173 of the same Charles Phiri (2) while not disapproving the approach adopted in
Manchinelli (1) deciding what is a minor offence by reference to the penalty, Baron,
D.C.J., had this to say:

"It remains to consider what is meant by a 'lesser penalty,' this

being the first of conditions postulated by Bell, C.J. At one stage in the history of the
English Common Law it was axiomatic that a misdemeanour carried a lesser penalty than
a felony, but with the passage of time the distinction between these two categories of
crime has lost most of its importance. The codification of the criminal law in many of the
former British colonies has further reduced the relevance of such a distinction. However,
the distinction is not entirely irrelevant; s.26 (4) of the Penal Code provides that a person
convicted of a misdemeanour may be evidenced to pay a fine in addition to or instead of
imprisonment."

Further down he says:

"In our view, therefore, where two offences under

consideration are a felony and a misdemeanour and each is expressed to carry the same

158
maximum sentience of imprisonment, the misdemeanour is a minor offence for the
purposes of s.181."

Coming to the present case, bearing in mind that misprision of treason is cognate to
treason and bearing in mind the sentence of misprision of treason is lesser than that of
treason, misprision of treason is a minor offence and it is one of those "invisible
alternative charges to treasons". I still hold the view that striking off of the Count of
misprision of treason before pleas were taken could not and did not mislead the defence.
Neither do I agree that the striking off of that count made the court functus officio in the
line argued by Dr Mushota. The court did not bar itself from considering misprision of
treason as a possible invisible alternative charge. Both amendments did not prejudice
accused 5.

As defence raised some objections to the amended information after "no case", it is only
fair that I re-consider this matter again for avoidance of any doubt.

In amending the information, the court cited s.213 of the Criminal Procedure Code as its
authority vesting it with power to amend. Obviously that was an error as that section is
for subordinate courts. However

p129

the powers for the High Court to amend the information is s. 273 of the Criminal
Procedure Code. The question at this stage is; what is the effect of quoting a wrong
section, purporting it to give power to the court? In my view, the court has powers to
amend information under the law and if a wrong section is referred to, reference to a
wrong section does not nullify the powers so existing. The situation can be likened to
charging one with an existing and known offence under the law but referring to a wrong
section. The charge is not a nullity or bad, it is merely defective and the accused cannot
be prejudiced by reference to a wrong section and Zambian cases on this are many and I
need only refer to the case of Nkole v The People (3). In the present case, does the citing
of a wrong section, as the source of power for the court to amend the information,
prejudice the accused persons? In my view the accused are not prejudiced in any way. It
is of interest to note that all accused, apart from accused 5 complaining about the
amendment of information are not complaining about the deletion of some overt acts. If
the court is wrong to amend the information, then the accused should argue that they
should be put on their defence on all the eleven overt acts and not only four. They cannot
accept deletion of other overt acts and oppose the amendment of some of the remaining
overt acts.

I will now consider the operation of s. 273 of the Criminal Procedure Code. The defence
feel that the court can only amend an information if there has been an application from
either party. Alternatively if the court has power to amend on its own motion, it cannot do
so without inciting the parties to express their views. In my ruling this issue, which is on
record, I did say that our s. 273 (2) of the Criminal Procedure Code is substantially word

159
for word of s. 5 (1) of the Indictments Act, 1915 of England. Our s. 273 (2) reads as
follows:

"273 (1) where before a trial upon information or at any stage

of such trial it appears to the court that the information is defective, the court shall make
such order for the information as the court thinks necessary to meet the circumstances of
the case unless having regard to the merits of the case the required amendments cannot be
made without injustice. All such amendments shall be made upon such terms as the court
shall deem just."

In the case of R v Smith (4) Humphrey J had this to say of the Indictments Act at p. 681:

"The power to amend an indictment has been since 1915 in s.

5 (1) of the Indictment Act, 1915. The enactment is generally known, was passed mainly
for the purpose of pleading in criminal cases. Up to that time the powers of amendments
had been very limited, and the subsection was intended to provide that in future the
power should be very considerably extended... The argument for the appellants appeared
to involve the proposition that an indictment in order to be defective must be one which
in law does not change

p130

any offence at all and therefore is bad on the face of it. We do

not take that view. In our opinion any alteration in matters of description, and probably in
many other respects may be made in order to meet the evidence in the case as long as the
amendment causes no injustice to the accused."

In my ruling on this issue I did refer to the case of R v Johal and Ram (5) especially the
judgment of Ashworth J. at pp. 253-254 where he says:

"In the judgment of this court there is no rule of law which

precludes amendment of an indictment after arraignment, either by addition of a new
count or otherwise. The words in s. 5 (1) of the Indictments Act, 1915 at any 'stage of the
trial' themselves suggest that there is no such a rule; if the suggested rule had been
intended as a limitation of the power to amend it would have been a simple matter to
include it in the subsection."

This general trend accepting that the English courts have power to amend indictments has
continued and in the case of Harris v R (6) in following the decision in Johal (5) which
decision followed the case of Smith (4), Stocker, J., had this to say at p. 32:

"As to the time at which amendment was made, it may very

well be that in very many circumstances application to amend as late as the close of the
case for the prosecution would be so likely to involve injustice to an accused person that
such an application in many instances might be refused. In this case we see no injustice
which could have resulted, and we feel really that Mr Horden has not pinpointed any

160
specific injustice. He relied simply on the general proposition that an amendment at such
a late stage must involve the question of injustice. We consider that it was art amendment
which involved more accurate description of a representation by conduct and that could
appropriately be made at the stage at which it was."

From, the English cases of Smith (4) Johal (5) and i (6) it is clear that courts have powers
under s. 5 (1) of the Indictments Act, 1915, which has similar provisions with our s. 273
(2) of the Criminal Procedure Code. It is also clear from these cases that before an
amendment is made due consideration ought to be given whether the amendment about to
be would cause injustice to the accused persons and I will revert to this aspect of the
matter later.

Section 273 of the Criminal Procedure Code already, quoted above is silent as to how the
power to amend the information is evoked. Because of the absence of specific provisions
of how the powers are to be evoked, practice set in and it has usually been at the instance
of the prosecution or the court itself. Surely it cannot be said. that the court cannot, in its
motion, see that the information is defective. An information can be defective in many
ways, either it does not disclose an offence or it is not supporting, the information later. If
the information is amended by the court on its own motion, it can only do so after hearing
all the prosecution

p131

evidence, and at this late: stage the amendment would depend on its form. To me on the
plain interpretation of s. 273 of Criminal Procedure Code if the court does not see any
defect in the information, the accused or the prosecution may draw the attention of the
court to the defect and amend the information.

The defence submitted that if the court wishes to amend the information on its own
motion, it should invite parties to express their views and for authority para. 50 of
Archbold, 39th Edn. was quoted. This requirement is not in s.5 (1) of the Indictments Act
1915, (or s. 273 of the Criminal Procedure Code), it is therefore a practice. I have no
quarrel with this practice. But in Zambia the practice is that generally the courts do not
amend information or charges unless at the "no case" stage. I do agree that that is within
the meaning of "at any stage of trial", but our own practice is that the parties are never
invited to express their views. It is at a stage where the matter may be finally concluded if
there is no case to answer. The practice as contained in para. 50 of Archbold supra may
perhaps be applicable here in Zambia at any stage of the trial other tha0n at no case to
answer stage. At the "no case" stage, the parties will have made their submissions and
those submissions cover or touch the evidence adduced vide the information as it stands.
I hold the view that when the court amends the information, at no case stage it does not
ask for the views of the parties. On this I have the Harris (6) case in mind where the
recorder amended the indictment at the no case stage, the parties were not asked for their
views, he amended the indictment on their arguments on no case to answer and on his
own motion.

161
I will now consider the question of injustice and that the amendment to overt act 2 is
prejudicial in that it was done merely to fit in with the evidence given. The authorities
(English) I have referred to already all say that no amendment should be allowed if it
would do injustice to the accused, and that if the amendment is brought in late it may
very well cause injustice.

The amendment complained of is the change of venue from the house of one Annfield to
the house of the first accused. To have a proper perspective of this matter one has to
consider whether this amendment is in form only or is in substance in that the meeting
place is an important ingredient of the overt act. I still do not agree with the defence that
place of a meeting in the instance case is an ingredient of the overt act. What is
substantive in the overt act is:

(a) the meeting itself;

(b) the time of the meeting;
(c) what was discussed; and
(d) the people attending such a meeting.

As was said in Johal (5) at p.353 referring to the case of Harden (1962) 46.Cr App. Rep.
90:

"The effect of the decision is that when an amendment; of a

particular count is under consideration it may be a question of

p132

degree whether the proposed amendment is no more than the

correction of a misdescription or on the other hand involves a substitution of a different
charge. "

In the case of Harris (6) Stocker J. at p.31 said:

"But in the view of this court this really is case of not altering
any substantive charge and substituting a new one; it is really a simple matter of
correcting a misdescription."

In the instance case the amendment was not of altering the substantive charge and
substituting it with a new one it was a simple matter of correcting misdescription of a
place where the meeting was held. All the defence submitted that the amendments have
caused injustice. What injustice has been caused? As was observed by Stocker J. in
Harris (6) at p. 32 a passage already quoted, it is not sufficient to merely state the general
principle that injustice had been done, the injustice must be pinpointed. This the defence
have failed to do as after the amendment was done the court was about to take fresh pleas
and ask the accused if they wished any of the prosecution witnesses recalled; the
objections were raised and even after overruling the objections none of the accused

162
exercised their rights to have any of the prosecution witnesses recalled for the purposes
of further cross-examination on the amended charge.

This to me only shows that there was no injustice caused to the accused by the formal
amendment. I therefore still hold the view that the formal amendment even at that late
stage did not cause any injustice to the accused.

In any event it appears that the place where offence is committed is not vital in certain
cases as is stated by Goddard. L.C.J., in the case Wallwork v R (7) at p. 156:

"The only other point in the Act (Indictments Act 1795) to

which I need call attention is that it is provided in r. 9 of schedule 1: ' Subject to any
other provisions of those rules it shall be sufficient to describe any place, time, thing,
matter, act or omission whatever to which it is necessary to refer in any indictment in
ordinary language in such a manner as to indicate with reasonable clearness the place,
time matter act or omission referred to.' So far as place is concerned, I think Mr Royles'
point is a perfectly good one, that incest is an offence wherever it is committed, and it
matters not whether it was committed in one place or another provided the prisoner
knows the substance of the charge against him. It makes no difference whether the incest
in this case was committed in Sussex or Surrey or any other place. It is not intended by
this simple count to charge him with more than one offence of incest and the words
'County of Sussex or elsewhere ' in to opinion of the court are surplusage. It would have
been a perfectly good indictment to charge him with the offence if the words 'in the
County of Sussex or elsewhere' had been omitted and there is no pretence for saying that
he did not know the nature of the offence with which he was being charged."

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Rule 9 in the schedule referred to above is word for word our s.137 (f) of the Criminal
Procedure Code. The offence here (overt act) is that a meeting was held between
specified dates, between specified people where a certain subject was discussed, here in
Lusaka. The specific spot where the meeting was held to me would be surplusage, to use
the word of Goddard, L.C.J.,in the Wallwork (7) case supra. The offence is clear enough
even without mentioning the venue, the amendment was therefore unnecessary and does
not cause any prejudice or embarrassment to accused persons.

It was further argued that the amendment was done merely to fit in with the evidence. I
think there is nothing wrong in doing that. That is what is involved in amending an
information to fit with the evidence adduced, and I hold that that is what is meant by "
amendment of the information as the court thinks necessary to meet the circumstances of
the case " in s.273 of the Criminal Procedure Code and this was held in the case of Smith
(4) at p.681 by Humphrey J.,:

"The argument for the Appellants appeared to involve the

proposition that an indictment, in order to be defective, must be one which in law does
not charge any offence at all, and, therefore, is bad on the face of it. We do not take that

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view. In our opinion any alteration in matters of description, and probably in many other
aspects, may be made in order to meet the evidence in the case so long as the amendment
cause no injustice to the accused person . . .It is to be observed that in this case the matter
in respect of which the prosecution suggested that the indictment was defective was in
the mere description of the thing obtained. In substance, the charge was as the same, but
in view, of the prosecution it was necessary to show that what was referred to in the court
was not the actual sum of money obtained but the cheque, i.e. the valuable security with
which in fact the Society parted . "

(italics my own)

Dr Mushota submitted that it was wrong for the court to amend the information by itself
in the sense that if the Court had power under s.273 of the Criminal Procedure Code that
power was to direct the prosecution to amend the information and not the manner adopted
by the court. With due respect, the word " order " as used in s.273 of the Criminal
Procedure Code does not necessarily mean only " direct ". The practice in Zambia is that
once the court has decided to amend the information or charge it amends the charge or
information filed in court on its own. It does not order the prosecution to file on amended
information as ordered. I therefore still hold that the amendment of the information at no
case to answer stage is perfectly in order and causes no injustice, prejudice or
embarrassment to the defence.

I will now deal with another legal issue brought out by the defence. They submitted that
although s. 47 of the Penal Code was repealed by Act 35 of 1973, the law still stands that
at least there ought to be two

p134

witnesses to one overt act or one witness to one overt act and one witness to another overt
act of the same kind of treason. It was submitted that if Parliament intended to change
this law, it had not succeeded as by virtue of s.2 of the English Law (Extent of
Application) Act, Cap. 4. all statutes in force in England on 17th August, 1911, are in
force in Zambia and that under the English Treason Act, 1795, the requirement which
was previously in s. 47 of our Penal Code is still law. This sounds a noble submission and
a noble way of interpreting a statute.

In the first instance I will deal with the English Law (Extent of Application) Act, Cap.4.
My understanding of that Act is that it, is an enabling Act in that in the absence of any
legislature in Zambia on any subject, the English statutes before 17th August, 1911, apply
in Zambia. Where specific Acts exist in Zambia on a given subject the English Acts do
not apply because Zambia is a Sovereign State and legislates on its own. Equally where
Zambia enacts an Act with similar provisions to the English statute the Zambia Act is
used and not the English statute. Therefore, before the passing of Act 35 of, 1973 the
English Treason Act 1795, was not applicable as two similar statutes cannot apply
concurrently. It would be absurd if it were otherwise.

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What is the effect of Act 35, of 1973? I seek guidance from what Lindley, M.R., said the
case of Re Mayfair Properly Company (8) at p 35:

"In order properly to interpret any statute it is necessary now

as it was when Lord Coke reported Heydon's case to consider how the law stood when
the statute to be construed was passed, what the mischief was which the old law did not
provide, and the remedy provided by the statute to cure that mischief."

In Mac Millan and Co., v Dent (9) Fletcher Moulton, L.J., put it this way at 120:

"In interpreting an Act of Parliament you are entitled, and in

many cases bound, to look to the state of the law at the date of the passing of the Act - not
only the common law, but the law as it then stood under the previous statutes in order
properly to interpret the statute in question. These may be considered to form part of the
surrounding circumstances under which the Legislature passed it, and in the case of a
statute, just as in the case of every other document, you are entitled to look at the
surrounding circumstances at the date of its coming into existence, though the extent to
which you are allowed to use them in the construction of the document is a wholly
different question."

In interpreting Act 35 of 1973, one has to look at the law when the Act was passed. The
law required that in treason one cannot be convicted unless there have been two witnesses
to an overt act or one witness to one overt act and another witness to another overt act of
same kind of treason. That was the law in Zambia and England. Act 35 of 1973 changed
this law. This was the mischief that existed before the Act was passed and Parliament

p135

intended to cure this mischief. I cannot accept that the Zambian Parliament intended to
cure the local mischief in order to use the foreign mischief. Parliament is presumed to act
reasonably. I do not, therefore accept that the English Treason Act 1795, whose similar
provisions were repealed in Zambia is applicable in Zambia by virtue of s. 2 of Cap. 4.
The law in Zambia at the moment, in relation to treason, is that there is no special
requirement as to number of witnesses to testify before one is convicted. This offence can
be proved like any other criminal offence.

The defence criticized my ruling on no case to answer when, at p. 33 I said that Gen.
Kabwe, PW5, was an innocent person having been acquitted on a charge of receiving
goods believed to have been stolen or unlawfully obtained. I went on to say that he had
been acquitted on this court's cause number HPA/70/1982. It was submitted that I based
my findings on evidence not before the court and that such evidence was irregularity
obtained in that nobody was called to produce the said record containing the acquittal. It
was further submitted that the proper procedure should have been as the one adopted by
this court when the record of the proceedings of the lower court in this case were
produced by the Senior Clerk of Court, PW122.

165
The proceedings in the lower court were referred to in the course of these proceedings
and these references were made from copies of the record. Since there was need to
produce the original, the custodian had to produce it.

Coming to the main issue, I was not receiving evidence, I merely took judicial notice of a
fact that had happened. It is on record that Gen. Kabwe did agree in evidence that he was
convicted of receiving goods believed to have been stolen or unlawfully obtained. It is
further on record that he said, "In the meantime I have appealed to the High Court " It is
common knowledge that his acquittal was reported in the press. In order to equip myself
to take judicial notice of the fact, that Gen. Kabwe was acquitted, I did consult
appropriate source, namely cause record HPA/70/1982. I am entitled to refer to
appropriate source as Lord Summer stated in his definition of judicial notice in the case
of Commonwealth Shipping v Peninsular Branch Service (10) at p. 212:

"Judicial notice refers to facts, which a Judge can be called

upon to receive and to act upon either from his general knowledge of them, or from
inquiries to be made by himself for his own information from sources to which it is
proper to refer."

It would be folly for the court, in a appropriate cases, to keep aloof on facts of common
knowledge. Again as Lord Summer said in the same Commonwealth Shipping (10) at p.
211:

"My Lords, to require that a judge should affect a cloistered

aloofness from facts that every other man in court is fully aware of, and should insist on
having proof on oath of what as a man of the world, he knows already better than any
witness can tell him, is a rule that may easily become pedantic and futile."

p136

Furthermore, this court is entitled to look at its own record. Kelly, CB, said at p. 149 in
the case of Craven v Smith (11):

"The first question is, whether we are at liberty to look at the

record to ascertain the nature of the auction. It is said we cannot - first, because it is not
verified by affidavit: and, secondly, because it is not alluded to in the rule. Now, I am of
opinion that the court is always at liberty to look at its own records and proceedings. . . . I
feel no doubt, therefore, that we may look at this record."

With those authorities I still feel I was correct to say that Gen. Kabwe was an innocent
man. To use his conviction in the subordinate court on the charge of receiving as a basis
of ascertaining his credibility or honesty is therefore wrong. I did not receive any
evidence, I merely took recognisance of the fact of his acquittal.

The prosecution in their submissions have conceded that some of their witnesses are
accomplices such as PW5, 33-37. I will now therefore deal with the law on accomplices.

166
There is no doubt that the law requires that evidence of an accomplice must be
corroborated by independent evidence. This need of corroboration only arises if the
accomplice has been found a credible witness. The court should warn itself of the danger
of convicting on uncorroborated evidence of an accomplice and in this case I am seized
of this danger throughout. If it acts on uncorroborated evidence of an accomplice, it must
be satisfied that the risk of false implication has been excluded. As was put by Baron,
D.C.J., in the case of Emmanuel Phiri and Others v The people (12) at p.92:

"In the case of an accomplice there must, in addition to the

fact in his honesty, be other evidence which, though not constituting corroboration in law,
yet satisfies the jury that the danger that the accused is being falsely implicated has been
excluded and that it is safe to rely on the evidence of the accomplice implicating the
accused. The nature and sufficiency of this supporting evidence will depend on the
circumstances of the particular case."

Who may provide the corroboration? The defence submitted that one accomplice may not
corroborate another accomplice. On this issue I would refer to the case of D.P.P. v
Kilbourne (13) where although their Lords were faced with a sexual offence, they dealt
with the general issue of corroboration wherever it is required. At p. 453 of the report
Lord Hailsham of St Marylebone, L.C., had this to say:

"It seems to me that the only way in which the doctrine on

which the decision of the court of Appeal was founded (in D.P.P v Hester [1972] 3. All.
E.R. 1056) can be supported, would be if there were some general rule of law to the
effect that witnesses of a class requiring corroboration could not corroborate one another.
For this rule of law Counsel for the respondent expressly contended. I do not believe that
such a rule of law exists. It is probably true that the testimony of one unsworn child
cannot corroborate the

p137

testimony of another unsworn child but if so this is probably

because this is expressly prohibited by statute."

At p.454 he went on to say:

"I do not, therefore believe that there is a general rule that no

persons who came within the definition of accomplice may be mutually corroborative . . .
In particular it does not necessarily apply to accomplices of Lord Simon's, L.C.. in third
close (in the Davies case) where they give independent evidence of separate incidents and
where the circumstances are such as to exclude the danger of a jointly fabricated story."

And further down on the same p. he goes on:

167
 "There is no general rule that witnesses of a class requiring
corroboration cannot corroborate one another if otherwise admissible and relevant as
probative."

In the same report Lord Reid at p.456 says:

"The main difficulty in the present case is caused by

observations in R. v Manser to the effect that evidence of one witness which requires
corroboration cannot be used is corroboration of that of another witness which also
required corroboration. For some unexplained reason it was held that there can be no
mutual corroboration in such a case. I do not see why that should be so. There is nothing
technical in the idea of corroboration. When in the ordinary affairs of life one is doubtful
whether or not to believe particular statement, one naturally looks to see whether it fits in
with other statements or circumstances relating to the particular matter, the better it fits
in the more one is inclined to believe it. The doubted statement is corroborated to a
greater or lesser extent by the other statements or circumstances with which it fits in . . .
We must be astute to see that the apparently corroborative statement is truly independent
of the doubted statement. If there is any real chance that there has been collusion
between the makers of the two statements we should not accept them as corroborative."

From what their Lordships said above, it is clear that there is no such a general rule of
law that an accomplice cannot corroborate a fellow accomplice provided, of course, the
dangers of joint fabrication are eliminated.

Further on the authority of Emmanuel Phiri's (12) case this corroboration need not be
corroboration in strict law, but something more that goes to confirm what the accomplice
has said, thereby eliminating the risk of false implication. Further, I bear in mind what
was said by Goddard, L.C.J,, at p. 56 in the case of Credland v Knowles (14) that:

"As has been pointed out over and over again, where the
question is whether a person's evidence is corroborated, the whole story has not to be
corroborated, because if there is evidence independent of the person whose evidence
requires corroboration which covers

p138

the whole matter, there is no need to call the first person at

all. The evidence has only to be corroborated 'in some material particular' . . . by some
other material evidence."

On the question of confession, it is undisputed law that ex curia statement by an accused

is only evidence against the maker of that statement but should that statement be repeated
in court on oath, it becomes evidence against all others affected by it. Further, ex curia
statements have to be proved to have been made freely and voluntarily. In the present
case all accused persons gave statements and were given in evidence except accused
number 8 whose statement was rejected after a trial-within-a-trial. Again all statements

168
were received in evidence after trial-within-a-trial except those by accused Shamwana,
Kabwita, and Musakanya. Of those that trials-within-a-trial were held only accused
Symba and Mporokoso gave evidence. Generally, the common grounds for objection
were breach of Judges' Rules in that warn and caution was not administered at the
beginning of the recording of the statements; police brutality in that some accused were
in chains and statements were recorded at gun point; and the general unfair conditions in
prison as they were all in custody at the time My rulings on the admissions of these
statements are on record and I adopt my reasoning in those rulings in trip judgment

The Judges' Rules which are said to have been breached are rr. 3, 7 and 8 and these are
reproduced here below:

"3. Persons in custody should not be questioned without the

usual caution being first administered.
7. A prisoner making a voluntary statement must not be cross
examined, and no questions should be put to him about it except for the purposes of
removing ambiguity in what he has actually said, for instance, if he has mentioned an
hour without saying whether it was morning or evening, or has given a day of the week
and day of the month which do not agree, or has not made it clear to what individual or
what place he intended to refer in some part of his statement, he may be questioned
sufficiently to clear up the point.
8. When two or more persons are charged with the same
offence and their statements are taken separately, the Police should not read these
statements to the other persons charged, but each of such parsons should be given by the
Police a copy of such statements and nothing should be said or done by the Police to
invite a reply. If the person charged desires to make statement in reply, the usual caution
should be administered."

Judges' Rules are not rules of law but formulated by the courts for the guidance of the
police for fair treatment of the suspects or arrested persons. The breach by the police of
these rules does not automatically render the statements so obtained inadmissible, there
is always the discretion of the judge to exclude such statements. In objecting to the
admissibility of some of the confessions, serious allegations of police brutality

p139

were made but no evidence was called. Serious irregularities by the police were made but
no evidence was led, and as I said, referring to the case of Mvula v The People (5) that
where serious allegations of brutality and violence are made against the police, it is the
duty of the defence to call evidence to support such allegations. Statements from the bar,
however moving or convincing, are no evidence at all and in the absence of supporting
evidence to such serious allegations, I found the allegations baseless. In fact such
allegations were denied on oath by accused 11. The failure to call evidence to support
serious misconduct by the police is deprecated by the courts even up to now, see R v
Callaghan (16) per Waller, J., for those accused who gave evidence I found them to be
lying in their allegations against the police for reasons I gave in my rulings. For accused

169
12, there was no trial-within-a-trial as the grounds of objection did not warrant the
holding of the same. My reasons are on record. The only uncontroverted fact is that these
statements were taken in breach of Judges' Rules to the extent that the usual caution was
not administered the beginning of the taking of the said statements when all the accused
were in custody. That fact, i.e. the breach of Judges' Rules, does not automatically render
such statements inadmissible, the judge may exercise his discretion. In the case R v
Straffen (17) Slade, J., said at p 214:

"I can deal very shortly, first of all, with the second ground of
appeal, which is based on what are known as the Judges' Rules. Those rules are designed
to secure that no advantage should be taken of a prisoner who is in custody and whom the
Police have already made up their minds to charge with the commission of an offence by
requiring that in such a case they should first administer the usual caution before making
inquiries of him. The rules have no force in law in the sense of making answers given by
an accused to any inquiries made in breach of them inadmissible, it is a matter for the
discretion of the Judge to decide in each case whether, when inquiries are made in
contravention of the rules, the answer should be admitted or not."

(Italics my own.) See also the case of R v Prager (1972) (18).

I am mindful that like all judicial discretions, this discretion has to be exercised
judicially. In the Straffen case the police had already made up their minds to arrest him
for an offence. In the present case although accused were suspects, the police had not
made up their minds to arrest the accused. The police, in terms of the rule 1 of the Judges'
Rules, are entitled to question any one whether suspect or not in order to find out the
author of a crime. The only difference here is that the suspects were in custody,. Having
found during the trials-within-a-trial that all statements were free and voluntary, I have to
decide whether by virtue of breach of the Judges' Rules I can exclude them. Exclusion
here is excluding than from being taken into consideration in deciding whether the
accused were guilty of the offence or not although such restatements have been admitted
in evidence. Even at this stage the court may consider exercising that discretion per the
authority of R v Watson (19).

p140

The basis on which discretion is exercised is that although the evidence is relevant and
admissible, if it would operate unfairly against the accused or it has less probative value,
then it should be excluded. Authorities on this are many such as Callis v Gun (20) and
Herman v R. (21). The fact that the statements were recorded in breach of Judges' Rules
is in itself not prima facie proof that the statements would operate unfairly against the
accused. Unfairness against be shown and I have not been assisted on this point, perhaps
because there is none. All counsel kept on hammering the point that "since the statements
were recorded in breach of Judges' Rules, they must surely operate unfairly against the
accused".

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However, be ale it may, I will look at the circumstances under which the statements were
recorded. All accused were persons under Presidential detention orders issued under the
Preservation of Public Security Regulations. All the time when statements were
recorded, although initially the Police may have been responsible for detentions, at this
stage they had no control. However all, the same, the accused were in custody for the
purposes of r. 3. Now what unfairness or prejudice had occurred to the accused? There is
evidence that although no usual caution was administered at the beginning of the
statements, as soon is accused started incriminating themselves. the caution was
administered and the accused continued talking. As I said earlier on that Judges' Rules are
there for the guidance of the police in safeguarding the interest of the accused persons. In
the present case although the police did not strictly follow all the Judges' Rules to the
letter, they protected the accused's interests as son as the accused started incriminating
themselves. The accused freely went ahead with their statements. I see no unfairness or
prejudice against the accused produced by the breach of r. 3. Even counsel were unable to
pinpoint the prejudice or unfairness.

Whilst on the question of confessions, I will briefly refer to the interrogation notes taken
from Mr Musakanya, exhibit "P100". I made it clear; when delivering any ruling on the
notes that they were being admitted in evidence not as a statement by Mr Musakanya, as
they do not qualify to constitute a statement, but as notes made by the witness to remind
himself of what Mr Musakanya said, i.e. to refresh his memory see Lester and Howard v
R. (22). These notes were objected to by Mr Mwanakatwe for Musakanya on the grounds
that:

(a) The Judges' Rules had been breached.

(b) Cumulative behaviour on the part of the State render it, but
for it, that no statement would have been made or if made it, would be unreliable and if
admitted it would be prejudicial to the accused.

In my ruling, I did consider the question of prolonged questioning which I said could
amount to oppression but that was vitiated by the provision of a bath, offer of food and
long break before the next morning. I am of the view that any element of unfairness was
removed. The only question remaining was that he was questioned whilst is custody
without the usual caution being administered. My views on this have been

p141

adequately dealt with above when I was dealing with warn and caution statements from
other accused persons. It is a question of injustice or unfairness but I see none myself.

It is law that in treason evidence is led to proof of the overt acts. In the present case one
of the overt acts is conspiracy. Before the commencement of trial, even at the close of
prosecution case, it was argued that the overt of conspiracy should not be included in the
information, or alternatively if it is put there, better particulars should be given. My
rulings on the issue are on record and I need not go through them again.

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As I said in one of my rulings that conspiracy is a very difficult offence to prove because
of its very nature of secrecy, and yet the burden of proof never changes, it is always
beyond reasonable doubt. It has been said that "A conspiracy consists of an unlawful
combination of two or more persons to do that which is contrary to law or to do that
which is wrongful and harmful towards another person," per Lord Brampton in the case
of Quinn v Leathem (23) at p.528. It has also been said that "conspiracy is usually proved
by providing acts on the part of the accused which lead to the inference that they wore
acting in concert in pursuance of an agreement to do an unlawful act", Per Viscount
Kilborne in the case of R. v Doot (24) at p. 540:

In the case of R. v Griffiths (25) Paull J., had this to say on conspiracy as an agreement
and as to conspirators at p.453:

"They may join in at various times, each attaching himself to

that agreement; any one of them may not know all the other parties but only that there
are other parties; any of them may not know the full extent of the scheme to which he
attaches himself. What each must know, however, is that there is coming into existence
or is in existence, a scheme which goes beyond the illegal act which he agrees to do."

However, where conspiracy is laid down as an overt act in a treason charge, this must be
proved first before acts of one conspirator are taken to be acts of the other conspirators in
furtherance of that common design.

Before I consider the evidence in this case, I should comment briefly on the complaint of
accused 1 that this court sat and granted an adjournment to the State on 28th September,
1982, in his absence as he was representing himself. The brief proceedings are on record.
I was approached by Mr Sheikh for the State and Dr Mushota at about 1255 hours. Mr
Sheikh applied for an extension of time within which to make submissions and Dr
Mushota fairly indicated to the court that although he had no opportunity to consult his
colleagues and accused persons, looking at the stage of proceedings, he had no
objections. It should not look as if the court saw the prosecution only and nobody from
the defence. I do not consider what transpired as proceedings which prejudiced the
accused persons who were not represented on that day.

p142

Having looked at the law that affects this case, I will now deal with evidence adduced in
the matter. As I have pointed out already, the prosecution called 122 witnesses and there
was only one witness for the defence. Some of these witnesses were very long and to go
into full details would amount to reproducing the whole case record which is composed
of fifteen typed volumes. It would be easier to deal with the evidence if I briefly review
the evidence relied upon by the State on each overt act, i.e. on the remaining four overt
acts. As the case is now completed, the court is entitled to consider the evidence on the
totality, i.e. all the evidence in this case, both that by the prosecution and the defence.

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Overt act 1 - conspiracy. For this overt act, the State called only one witness, Gen.
Kabwe, PW5. He testified that he was a member of Lusaka Flying Club and sometime
between April, 1980, and May, 1980, whilst at the club he was approached by accused 4,
Mumba, whom he had known before having been together at school. Accused 4 told the
witness that he had something serious to talk to him about and later he informed the
witness that there was a plan to carry out a coup d'etat in Zambia and the witness was one
of the participants. He was told that the plan was at a very advanced stage and it would be
carried out within a week or two and that it was financed by powerful people, both within
and outside Zambia. PW5 told accused 4 that he did not take him seriously and the coup
would not succeed but was told to go and think about it.

A week later they again met at the Flying Club, like the first meeting, the second
meeting was not pre-arranged. Accused 4 invited PW5 to meet some people the following
day at 1900 hrs but PW5 did not keep his appointment but after two days they met again
at the Flying Club where accused 4 asked PW5 why he did not turn up for the meeting,
the witness said that it was due to pressure of work. However, they left later to meet a
person called Pierce Annfield. The witness had met Annfield before in the offices of
accused 5 where he asked Annfield to sign some mortgage forms as he was a lawyer by
profession. At that meeting in accused 4's Office, Annfield had invited PW5 to visit him
at his house but this visit to Annfield's house with accused 4 was not in response to that
invitation. Anyway they went to the house of Annfield where they also found Mr
Sikatana who was accused 3 and has since been acquitted. He was introduced to Mr
Sikatana and immediately Mr Sikatana left. Annfield then asked PW5 whether accused 4
had told him anything and he agreed and after a short discussion the meeting broke off
but they were to meet again. He was then driven back to the club by accused 4. After
about a week, accused 4 went to the witness's house on a Sunday and invited him for a
drink. As they were driving out accused 4 told him that they were going for another
meeting. They went to Annfield's house and as they were approaching it they saw that
Annfield was driving out. Accused 4 parked his car by the road and witness saw accused
2 being dropped from another car in front of Annfield's house. Accused 2 got into
Annfield's car and he, the witness, and accused 4 drove off, followed by Annfield.
Accused 4 informed the witness that they were going to Shamwana's house. At accused
1's house they found him and he opened the

p143

gate for them and they drove into the yard and they were joined by Annfield and accused
2. They all went into accused l's house and exchanged greetings. After this, accused 2
introduced the subject about the plans to topple the Zambian Government and they asked
for his views. The plan outlined to him was to divert the Presidential plane to some pre-
selected place and there force him to renounce his office and hand it over to someone
else. Announcements would then be made in the news media, radio and television to that
effect. It was emphasised that they did not want any loss of blood unless absolutely
necessary. In order to carry out this plan, in his capacity as Chief of Air Staff, they
wanted PW5 to arrange for the diversion of the plane and find suitable pilots to
undertake the task.

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After execution of the plan, some key leaders such is Secretary-General of UNIP, the
Prime Minister, Secretary of State for Defence and Security, Zambia National Defence
Force Commander, Service Chiefs including himself would be arrested to forestall
counter-coup. He would be released after sometime. When accused 2 introduced the
subject, all present, that is accused l, 4 and Annfield took part in the discussion without
disassociating themselves. It was brought out to the witness that whoever the pilot was
that executed the plan he would be "emolumented" one way or the other.

After the plan was outlined the witness commented that although the things in the country
may not be perfect, the manner of changing the Government as outlined was not the best
solution and also that from his observations, the Defence Force would not support change
of Government in that manner because they were loyal to the leadership and Government
and, politically, the masses were behind the leadership and Government. After making
these observations, the point of inducement arose and Annfield left the meeting and came
back with K500.00 and gave it to the witness to be used to induce some ZAF pilots to
undertake the task. The witness took the money but used it on his personal things.

After this second meeting, the witness kept on seeing accused 4 at his office over the
construction of his house by accused 4's company, Mumgood Flooring, and he was being
asked what progress had been made but he kept on saying none until he was finally told
by accused 4 that he should forget about it as the whole thing had been dropped. On one
of the many visits to accused 4's office he found a man whom he was told was Symba,
accused 10. The witness, with all this information about the planned coup, never reported
to any authorities and he gave his reasons as:

(a) As early as July, 1980, he had been assured by Mr. Mumba

that the whole thing had been dropped and he saw no reason for reporting.
(b) He was afraid for his life as when he was first approached by
accused 4 he was told that if he reported this matter to anybody he would be killed.

p144

(c) He did not report to his boss as he was not in good books with
him and because of the chain of command, he would not by-pass his boss to report to any
other authority.

However, be as it may, this witness was picked up and detained and interrogated for
many hours and after that he too was arrested and in fact committed to High Court for
trial. However, later on he turned State witness and was issued with an indemnity. That
although he described his stay in prison as traumatic, that and the indemnity did not
influence his statement, he gave his statement according to what he knew in the matter.

This witness is an accomplice witness and he was indemnified by the State against
prosecution for his complicity in the alleged coup plot. In my ruling I did find Gen.
Kabwe as an honest witness having observed his demeanour and I have not found

174
anything in the evidence that can make me doubt his honesty or credence. I do not think
that he coloured his story in any way because he agreed to turn State witness. In my
ruling on no case to answer I did say that I did not believe his reasons for not reporting
the plan to the authorities, I concluded that he did not report because he was in it and I
still hold that view. In my view, the reasons advanced are an after-thought after the plan
was foiled but I will not contradict myself to say that I do not believe his reasons but at
the same time say that I find him an honest witness. The point where I have found him
lying is not a material point. The material points of his evidence in relation to this case
are whether he was approached by accused 4 and told of the plan and invited to attend
meetings; whether he did attend such meetings and what was discussed and agreed; and
the people who attended the meetings.

Having found Gen. Kabwe a truthful witness, as he is an accomplice, I will look for
corroboration, i.e. evidence that will confirm the material points relevant to the case,
evidence that should rule out the possibility of false fabrication of the story.

Before I look for such corroborative evidence, I should put into record that this witness
was threatened and interrogated for a prolonged period before he gave his statement in
October, 1980. When the offer of his turning State witness was made to him he got legal
advice from his counsel on it and he accepted the offer and when he gave the statement,
on which his evidence in court was based, he repeated the same story as told to the
interrogators in October, 1980. I do not think that he stuck to his story because of the
promised indemnity, I say so because he was told when the offer to turn State witness
was made to him that evidence against him was negligible, which in ordinary English
means that such evidence could not stand against him. There was no motive to fabricate
the story against some of his co-accused, he was told that there was no sufficient
evidence against him and he would have preferred an acquittal by a court of law. He
made it clear in evidence, in re-examination, that he told the police what he knew and
what was the truth, and I accept it.

p145

I will now consider whether there is independent corroborative evidence to support the
material aspects of Gen. Kabwe's evidence. As was pointed out in D.P.P v Kilbourne (13)
case witnesses in a class that need corroboration may corroborate each other and as was
said in Mulenga and Others v R. (25) at pp.15-16 by Clayden, F.J.:

"Every Appellant, except appellant No.3 had a statement in

which he had admitted being present ad the meeting, though denying that there was any
conspiracy at it. Quite correctly these admissions were regarded as corroboration of the
evidence of the accomplice in respect of each particular appellant who made the
admission."

I further bear in mind that conspiracy can be proved by inference drawn from the words
or acts of the accused person. The matter would be easier if each accused is considered
separately against this overt act of conspiracy.

175
As far as accused 4, 10, and 11 are concerned they clearly corroborate the evidence of
PW5 insofar as existence of the Coup plan is concerned. They knew the plan although
they may not have been in it from the start; but when they got involved they never
disassociated themselves from it. Their confession statements corroborate the evidence of
PW5 on the authority of Mulenga and Others (26) already referred to. As to accused 2
the corroborative evidence is contained in the interrogation notes written by PW110, Mr
Kaulungombe. I have dealt with this matter already it is very unlikely that an accomplice,
PW5, should talk of the plan of diverting the Presidential plane and the accused 2 talks of
it or suggests the plan to conspirators. This cannot be a mere coincidence. I find that
accused 2 was telling lies when he said that he put the suggestion of diverting the
President's plane to some place and force him to renounce his office as a joke. He was not
joking.

I therefore accept that sometime in April or May, 1980, Gen. Kabwe was approached by
accused 4 at Lusaka Flying Club and was told of the plan to topple the Zambian
Government. I accept that he did go with accused 4 to the house of Annfield and that
subsequently he attended a meeting at the house of first accused which meeting was also
attended by accused 1, 2, 4 and Annfield. At that second meeting the plan of diverting the
Presidential plane was told to him and he was asked to arrange for necessary personnel
to carry out the plan and that he was given K500.00, by Annfield to use it for inducement
of ZAF pilots. I accept that he did not use this K500.00 for the purposes for which it was
given to him but spent it on personal things. Having accepted the K500.00 and having
spent this money on personal things and having failed to report this matter to authorities,
I can only conclude that Gen. Kabwe joined the conspirators although he may not have
been a very active member.

I further accept his evidence that he was arrested for treason together with others and was
interrogated for some considerable period and that he did give the interrogators a
statement. I accept that he was approached by the State through his lawyers that the State
wished him to turn State evidence and that after legal advice from his lawyers, he
accepted the offer and his evidence is based on what he had told the interrogators

146

in October, 1980. I do not accept that he has coloured his evidence any way.

Accused 1 is implicated by PW4 and some of the co-accused in their warn and caution
statements. From cross-examination of the witnesses, it is clear that accused 1 denies
being involved with co-accused. He says that he knew accused 10 when his firm, i.e.
accused l's firm, acted for accused 10 in one matter when accused 10 was detained. His
association with accused 10 was therefore an innocent one. Accused 1 was found at
house number 6525 Kasangula Road, Roma Township, on 23rd October, 1980. The
circumstances of his apprehension were that police got some information that a man they
came to know as Symba, involved in the shoot-out at Chilanga Farm on 16th October,

176
1980, was at that house in Roma. Police went there and on entry they found accused 1
seated in the lounge.

There is no doubt from the evidence of PW4, Raphael Lungu, and PW6, Mrs Rose,
whose evidence I accept, that accused 10 was keeping up in that house. It is significant
also to note that accused 10 was apprehended the same afternoon as accused 1 except that
he was apprehended off Mugoti Road, a road behind Kasangula Road. When accused 1
was found in this house he was asked where the people he had been with were he replied
that he was alone and that perhaps the police had seen a servant who went through the
back door. He further stated that he did not know the owner of the house and that he
came to the house after being given directions on the phone. He was asked to accompany
the policeto Force Headquarters and on the way, on his own motion, he told PW2 that he,
accused 1, was " stupid to have been involved in this thing". On being asked why, he said
he was a lawyer for the man the police were looking for. He explained that he was stupid
because he was to be Chief Justice the following week as the incumbent was going on a
course abroad.

It should be observed that when the Police burst into the house in Roma, no names of the
people they were looking for were mentioned and accused l's statement that he was a
lawyer of the man they were looking for confirms the evidence of PWs 4 and 6 that
accused 10 had been in that house. Accused 1 therefore told a lie to the police at first
when he said that he was with nobody and the police may have seen a servant.

It is the undoubted duty of a lawyer to defend his client, no matter how serious the crime
is but that duty does not extend to helping the client escape justice or assist in perverting
the course of justice. Accused 10 himself states in his warn and caution statement that he
saw the police from a window and he left the house using the back door. Why should
accused 1 tell a lie on the people he was with? If the meeting was an innocent,
client/lawyer meeting, why allow the client to go out of the house using the back door
when they realise police had arrived at the house? From PW117, John Ng'andu, we get
another piece of evidence. He asked accused 1 why he was involved in this matter as he
had known him to be High Court Commissioner and a lawyer. Accused 1 replied to the
effect that he acted as a lawyer on the sale of the farm between Mr

p147

Milner and Annfield and that he acted as lawyer for accused 10 when accused 10 was
detained. He further explained to the witness how he was arrested. He said he got a
telephone call from a relative saying that another relative was sick in Roma Township
and he went there and he was arrested. On being asked about the people found at
Chilanga, he said he was not responsible for these, it was accused 10 who knew about
them. Can all this information, be for innocent purpose? There was no sick person in the
house number 6525 Kasangula Road, Roma, so why tell lies that he went to the house to
see his sick relative. Lies told out of court, may under certain circumstances amount to
corroboration. In the case of R v Lucas (27) Lord Lane, C.J., had this to say at p.123:

177
 "Statements made out of court, for example, statements to the
police, which are proved or admitted to be false may in certain circumstances amount to
corroboration. It accords with good sense that a lie told by the defendant about a material
issue may show that the liar knew if he told the truth he would be sealing his fate."

In the same case, Lord Lane, C.J., gave conditions under which a lie may amount to
corroboration. On same p. 123 he said:

"To be capable of amounting to corroboration the lie told out

of court must first of all be deliberate. Secondly, it must relate to a material issue.
Thirdly, the motive for the lie must be a realisation of guilt and fear of the truth. The jury
should appropriate cases be reminded that people sometimes like, for example, in an
attempt to bolster up a just cause, or out of a wish to conceal disgraceful behaviour from
the family. Fourthly, the statement must be clearly shown to be a lie by evidence other
than that of the accomplice who is to be corroborated that is to say by admission or by
evidence of an independent witness."

From the evidence, which I accept, accused 1 was apprehended from house number 6525
Kasangula Road, Roma Township and on that day accused 10 was in the house. I accept
that before PW4 saw para-military police officers surround the house, he saw accused 10
jump the backyard wire fence and after visiting the scene I draw the conclusion that he
jumped into the yard of house No. 6232 on Mugoti Road and I accept that later PW4 saw
one elderly person being brought out of house number 6525 Kasangula Road, Roma
Township and from the evidence of PW2 and 3 this elderly man is accused 1 as no other
person was found in the house; I also find that both accused 1 and 10 had been together in
the house. The lies told by accused 1 that there was nobody in the house when police
came and the running away, through the back door, of accused 18 make their meeting in
this house not an innocent one. Further lies that accused 1 went to this house to see a sick
relative clearly go to show other than an innocent visit. The little to conspiracy of accused
10 as told by PW5 is corroborated by his warn and caution statement and the odd
coincidence of meeting one of the conspirators under the circumstances revealed and the
lies told to let the meeting appear an innocent one do corroborate PW5 that first accused
was one of the conspirators.

p148

The lies told by accused 1 were deliberate, they are material in the sense that they were to
convey innocent, i.e. innocent association with a conspirator to plan to overthrow the
Zambian Government. They were certainly told after realisation of guilt and fear of the
truth and that if accused 1 told the truth he would be sealing his fate. The lies are clearly
lies from evidence of PW4 and 6 in that accused 10 was in house number 6525
Kasangula Road and yet accused 1, denied his presence except for the presence of a
house servant. Further there was no sick person at this house in question and it was never
suggested that PW6 is a relation of accused 1. His remorse for being involved in the
"thing" when he was to be Chief Justice the following week is clearly a testimony of guilt
and regret. I am satisfied that accused 1 is linked to the conspiracy to over throw the

178
Government by unlawful means. There was no need for accused to regret being involved
with accused 10 as his lawyer if that was the only involvement and there was no need to
have remorse due to the fact that he was to be Chief Justice the following week. If his
association with accused 10 was on the footing of client/lawyer, there would be no need
to regret being involved with him as he was doing his duty as a lawyer, no matter how
grave the offence his client might have been facing.

It is on evidence that accused 10 has generally been referred to as "DEO". It is too much
of coincidence that his name should appear in exhibit "P106" on counter folios 674276
and 674277. This exhibit is a cheque book of the personal account of accused 1 and if
there was that client/lawyer relationship, these should have appeared in the cheque book
for Shamwana and Company. This exhibit is referred to not because of the allegation by
the prosecution in their information that accused 1 gave money to accused 10 for the
purposes alleged, but to show the relationship existing between these two accused
persons. The file kept by Shamwana and Company on accused 10, exhibit "P111" shows
no payments made by the firm to accused 10, it only shows one payment by or on behalf
of Symba for K400 being fees for work done in his detention case. There is no evidence
that Messrs Shamwana and Company were retained by accused 10 as his lawyers. The
matter on which they had a brief was over his detention in August, 1980,and this was
revoked on 8th September, 1980, per copy of the revocation order in exhibit "P111." I
have no hesitation, from the conduct of accused 1 and 10 on 23rd October, 1980, to
conclude that the meeting at house number 6525 Kasangula Road, Roma, was not an
innocent meeting, it was a meeting of conspirators trying to find out what to do next as
one conspirator, accused 10, was wanted for the shoot-out at Chilanga. I am satisfied that
accused 1 is involved in the conspiracy to overthrow the Zambian Government as
narrated by PW5. The coincidences and lies are something more which although may not
amount to corroboration in strict law, they confirm what PW5 said. They eliminate the
possibility of false implication by PW5 of accused 1 in the conspiracy.

I will now deal with accused 8, Thomas Mulewa. According to accused 11, Chilambe,
accused 8 is his elder brother and that he collected him from Mansa after he and accused
10 had had a meeting at Lusaka

p149

with Mumba, accused 4, Annfield and others at which he, accused 11, and accused 10
were persuaded by the others to help them to overthrow the Zambian Government and in
turn they would help them in over-throwing the Zairean Government. He collected
accused 8 to help him in recruiting soldiers for the two ventures and he was to be a
driver. He, indeed i.e. accused 8, agreed, and they came together to Kitwe and he was
involved in recruiting such persons as PW33 Alick Muzeya, PW34 Lewis Masuba, PW35
Emmanuel Kafumbo, PW36 Soneka Mashikini and PW37 Francis Muteba. According to
accused 11, when recruiting these soldiers, they never told them the truth. They were
being told that they revere recruited as labourers, to work on a farm in Kitwe. The reason
for telling lies was the very fact that if the recruits were told that they were to be soldiers
to overthrow the Zambian Government the secret would be revealed.

179
Accused Thomas Mulewa was apprehended in the early hours of 16th October, 1980, in
the vicinity of the Chilanga Farm by PW 71, Major Kalebuka. On apprehension he stated
that he was from the next farm where he was visiting his in-laws. After apprehension, he
was identified by David Munjinga who was also one of the people captured at the farm.
This David Munjinga died as a result of the, injuries he received from the shooting at the
farm and it was accused Mulewa who identified the body to the doctor who conducted a
post-mortem examination at the University Teaching Hospital, as that of David
Munjinga.

Accused Mulewa was identified by PWs 33-37 us a person who recruited them to work
as farm labourers. Their evidence was not challenged at all, and I accept their evidence
that they were recruited by accused Mulewa and Chilambe. I accept that they were told
that they were to be farm labourers, but as accused 11 said, and as I found in my ruling
on no case to answer, they were tricked that they were to be farm labourers. They were
recruited to be soldiers in the illegal army. When accused Mulewa was apprehended and
told PW 71 that he was from the next farm visiting his in-laws, he was telling lies. I have
no hesitation in concluding that Thomas Mulewa was one of those people at the Chilanga
Farm.

Exhibits "p 139"-"p 142" were found within the vicinity of the Chilanga Farm. It is not
mere coincidence that some of these documents bear the name of accused Mulewa and is
described as "Chief Adjutant". It is also no mere coincidence that the name of David
Munjinga should be found on some of these documents. He was issued faith AK47 rifle
and ammunitions, exhibits "P63" and "83" respectively. I do not accept that Thomas
Mulewa was a mere driver of accused Symba. He was fully involved in the affairs of the
group of conspirators and was given the responsibilities of Chief Adjutant. He could not
be given the title of adjutant if he was not fully aware of the aims of this group. PWs 33-
37 were recruited at different times by accused Chilambe and Mulewa and transported
first to Tshombe Farm in Kitwe and then to Chilanga farm here in Lusaka. The witnesses,
although found in the situation

p150

they were, I would describe them as innocent accomplices, innocent in the sense that
although they were recruited by accused Chilambe and Mulewa, they were tricked that
they were to be farm labourers when in fact they were intended to be soldiers of an illegal
army. To some, like PW36 Mashikini, when they realised that they were not to be
ordinary farm labourers, after the guns were brought to the Chilanga farm, they deserted.
This clearly shows their innocence. The evidence of PWs 33-37 does not show that they
concocted the story and they do corroborate each other on recruitment, supply of the guns
and ammunition. From the evidence I am satisfied that accused Mulewa joined the
conspirators who planned to overthrow the Zambian Government. His warn and caution
statement was a saving statement, not containing the truth.

180
As regards accused 12, Kanyembu, he was also apprehended at the Chilanga farm and at
the time of apprehension, he was armed with an AK47 rifle with eight rounds of
ammunition, exhibit "PG2" and "90" respectively. He was apprehended when the security
forces went to the farm. His name appears on exhibits "P 140" and "P 142". On exhibit "P
140" gun number 73BK 2262 exhibit "P 73" is recorded against his name. Being with a
different gun on apprehension can be explained that there was confusion when Security
Forces attacked the farm and he picked any gun. Being armed with an AK47 at a farm
where there were other armed men can be nothing other than that accused was with that
group.

On exhibit "P 142 (C)" he is described as a captain. I refuse to accept that that group of
people at the farm was there for the purposes of farming, giving them work was a mere
further method of concealing the true purpose of their presence. Arming over sixty people
with AK47 rifles can hardly be attributed to farming. Even if it is accepted that there
were thieves on or around the farm, the farm could not need protection by arming all
those present and accused 12 was one of those so armed. On the totality of the evidence, I
am satisfied beyond all reasonable doubt that all the accused persons, except accused 5,
did conspire together to overthrow by unlawful means the Government of the Republic of
Zambia as by law established. They all may not have been together when the idea was
originally mooted out, but certainly they joined together later.

The defence put forward is complete lack of knowledge of the whole venture. This is
what I gathered from cross-examination of the prosecution witnesses. With the
overwhelming evidence adduced by the prosecution, this defence cannot stand. All
accused persons were involved in this matter and I reject their defence of innocence.

Further accused Chilambe put forward the defence that he later withdrew from the whole
venture and he took ninety guns from the farm so that they could be used in Zaire. I find
it difficult to accept this bearing in mind his conduct. It should be remembered that the
ninety guns he took to Ndola and which he showed the Police after arrest were

p151

surplus after arming everybody at the Chilanga farm. It should also be noted that his
organisation had been looking for guns and as there were surplus guns at the farm, it was
natural that they keep the surplus safely somewhere from where they could collect then
later and use in Zaire. He buried them secretly and this was in October, 1980. He never
took any positive step to inform the authorities about either the plans or the guns, until he
was apprehended in December, 1980. Further, when accused Symba was in detention, he
had every opportunity to tell the authorities about the plans if he was afraid of the
presence of his leader Symba but he never did. This conduct cannot be of a person who
had disassociated himself from the venture. If the shoot-out had not taken place, I am
very certain that he would have come back to rejoin the group and proceed with it to
execute their plans. I reject his defence that he disassociated himself at any reasonable
time. He remained on the Copperbelt because the group at Chilanga farm had been

181
dispersed by the Zambian Security Forces and he did not know where his leader Symba
was. He was like a lost sheep.

As conspiracy has been proved, any act or omission done by any conspirator in pursuance
of the conspiracy is deemed to be an act or omission of co-conspirators. When I was
dealing with the evidence of Gen. Kabwe, I did refer to the meeting he had with accused
1, 2 and 4 together with one Annfield. At this meeting he was told of the plan to
overthrow by unlawful means, the Government of the Republic of Zambia and a
suggestion was put to him to how to do it. It was suggested that a Presidential plane be
diverted to a pre-selected place where the President would at gun point be ordered to
renounce his office and hand it to someone else. That meeting was clearly in furtherance
of the conspiracy. The fact of meeting taking place and the plan discussed is
corroborated by warn and caution statement of accused 4 and the interrogation notes in
respect of accused 2. Accused 10 does confirm of a meeting in his warn and caution
statement. In his evidence, accused 11 did confirm of the meeting where PW5 was being
persuaded to do some acts. All these were done in pursuance of the plan already agreed
upon. I am satisfied that overt act number 2 of a meeting held to persuade PW5 to make
arrangements to divert the Presidential plane has been proved beyond all reasonable
doubt.

On the evidence, having agreed on the plan to overthrow the Zambian Government, by
unlawful means, I accept that accused 4, 10 and 11 proceeded to buy the following motor
vehicles: Land - Rover AAD 5842 from Three - Way Parking: VW Combi ANA 1452
and Ford Transit 40 ADA 995 from Duly Motors. These vehicles were used to transport
recruits from North - Western Province to Kitwe and then to Lusaka. I have already held
that these recruits were cheated that they were to be farm labourers when in fact they
were to be soldiers in an illegal army. PWs 33-37 were recruited and transported at
different times and there is no suggestion in their evidence that they concocted the story
against accused 4, 8, 10 and 11 and 12 about their involvement in this matter. These
witnesses were truthful witnesses whose evidence was not

1982 ZR p152
CHIRWA J

discredited in any material way by the defence. I am satisfied that although these
witnesses said that they were recruited as farm labourers, they were tricked as was
confirmed by accused 11. No reasonable person can accept that farm labourers can do
farm work with AK47 assault rifles and thirty rounds of ammunition each. Although they
did some farm work, that was just to hoodwink the poor innocent souls. If they were told
the truth, it is doubtful if any of them could have agreed to be recruited as is
demonstrated bar PW36, Mashikini, who after seeing the guns, he and some friends
deserted the farm. I am satisfied that accused 8, 11 and 12, in pursuance to the
conspiracy did recruit the men listed in the new overt act 3 for the purposes of turning
these into soldiers to be used in overthrowing by unlawful mean the Government of the
Republic of Zambia as by law established. As these people were recruited as a result of
the conspiracy, the recruitment is deemed to be the act of all accused persons.

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There is evidence before this court from PW68, Bread; PW69, PW85, PWs 33-37 and
accused 11 that accused 10 was the leader of this group. He took an active part in looking
after them at the farm and according to PW68 he took the first gun to the farm and this
fact has been confirmed by the accused himself in his warn and caution statement
admitted in evidence. There is no doubt in my mind that accused 10 was in command of
this group. This group was unlawfully armed with weapons, of war, AK47 assault riffles,
they were armed for a war-like operation and they were therefore an army. They needed
not to be trained like professional soldiers. I am satisfied beyond doubt that accused 10
was in command of this army at Chilanga farm whose aim was to overthrow by unlawful
means the Government of Zambia as by law established; the new overt act number 4 has
been proved.

On the totality of the evidence, I am satisfied beyond all reasonable doubt that between
1st April, 1980, and 16th October 1980, accused numbers 1, 2, 4, 8, 10, 11 and 12 did
conspire to overthrow, by unlawful means, the Government of the Republic of Zambia
and as a result of such conspiracy did endeavour to persuade Gen. Kabwe to arrange for
the diversion of the Presidential plane to a pre-selected place where the President would,
at gun point, be forced to renounce his office and hand over his office to someone else. I
am satisfied further that in pursuance of the said conspiracy, accused 8, 11 and 12 went
to North - Western Province to recruit men who were to form an illegal army which was
to be used in overthrowing by unlawful means, the Government of the Republic of
Zambia as by law established and that the said illegal army was under the command of
accused 10. I am therefore satisfied beyond all reasonable doubt that the prosecution has
proved the case of treason, contrary to s. 43 (1) (a) of the Penal Code. Cap. 146, against
the said accused numbers 1, 2, 4, 8, 10, 11 and 12 beyond all reasonable doubt and I
convict each and everyone of them at charged.

I will now proceed to deal with the case against accused Mporokoso. Having been
satisfied beyond all reasonable doubt that treason had been committed, I will now
consider whether accused Mporokoso was aware

p153

of the treason being committed and that he failed to report to the authorities. The
evidence against him is mainly that his warn and caution statement admitted in evidence
after a trial-within-a-trial. Further there is the evidence of accused 11 in court that
accused Mporokoso attended meetings where this plan was discussed at Shamwana's
house and in Mumba's office.

In his warn and caution statement accused Mporokoso agrees that he was approached by
accused Mumba sometime in about March or April, 1980, and was told of the planned
coup and he attended a meeting with accused Mumba and accused Shamwana at accused
Shamwana's house. He was co-opted into the plan so that he assists in the military way
since the planners were all civilians. He was asked to go and look for willing officers in
the Army and Airforce. To assist him in his task, he was given K1,000 cash but he spent

183
this money on personal matters. On meeting accused Mumba and on being asked the
progress made, he said that the people he wanted to contact were out on operations. In
May, 1980, he left for Yugoslavia on official business and on return he was told by
accused Mumbo that they had made lot of progress in recruiting personnel and these
were ex - Gendarmes of Katanga and two of their officers would be in Lusaka shortly. He
met these officers in June, 1980, and these were Deo and Chilambe accused 10 and 11
respectively. He met them at accused 1's house where it was explained to him that the
Gendarmes would assist in staging a coup in Zambia and in return the Zambians would
assist them in staging a similar one in Zaire. Responsibilities were then shared, he was to
find arms and possibly uniforms. He was to meet Deo the following day in Mumba's
office but did not do so. However, later they did meet and Deo expressed his
disappointment in that accused Mporokoso did not turn up for the meeting. With all this
information, accused Mporokoso did not report to the authorities, giving the excuse than
he was told that he was the only military personnel they had contacted and if the
information leaked to the authorities, he would be the first suspect and he would be shot.

I will now consider this defence of duress or compulsion in respect of accused

Mporokoso. The defence of compulsion is provided for under s. 16 of the Penal Code,
Cap. 146, which reads:

"16 A person is not criminally responsible for an offence if it

is committed by two or more offenders, and if the act is done or omitted only because
during the whole of the time in which it is being done or omitted the person is compelled
to do or omits to do the act by threats on the part of the other offender or offenders
instantly to kill him or do him grievous bodily harm if he refuses; but threats of future
injury do not excuse any offence.',

To avail oneself to the defence under s. 16 of the Penal Code, following conditions must
be satisfied:

(a) offence must be committed by two or more people;

(b) offence must be committed whilst all the time the offender

p154

is compelled try do it through threats of instant death or

grievous bodily harm if he refuses;
(c) Future injury will not avail one to the defence.

Accused Mporokoso in his warn and caution statement already referred to states that he
did not report to the authorities because he was told that he was the only military man and
that if the information leaked he was to be the person responsible and he would be shot. It
will be noted from his warn and caution statement that he was approached by accused 4
around March or April, 1980, and between this time and 16th October, 1980, he had
been out of the country twice, first to Yugoslavia and secondly to West Germany. It
should also be noted that accused Mporokoso was not always with accused 4 or any of

184
the accused persons. He was not in contact with them every day. He had ample
opportunity to report to authorities and seek protection.

As was said in R v Hudson and Taylor (28) at p. 246 by Widgery, L.J.:

"It is essential to the defence of duress that the threat shall be

effective at the moment when the crime is committed. Threats must be a 'present' threat in
the sense that it is effective to neutralise the will of the accused at that time."

In the present case, the offence of failing to report a treason or misprision of treason is
continuous offence and unless it can be shown that the threat was "present" all the time, I
do not see how the defence can stand. As I have said, the accused was not constantly
under the "present" threats of co-accused and I very much doubt if such a defence is
available to an offence such as misprision of treason as this is a continuous offence. One
commits it as from the time he knows of the plan by others to commit treason and he fails
to report. He is only relieved once he reports to the relevant authorities. I am aware of
what Lord Morris of BorthY-Gest said at pp. 917 and 918 in the case of Lynch v
Director of Public Prosecutions (29) in answer whether duress should be recognised as a
defence:

"The answer that I would give to these questions is that it is

proper that any rational system of law should take fully into account the standard of
honest, and reasonable men. By those standards it is fair that actions and reactions may
be tested. If then someone is really threatened with death or serious injury unless he does
what he is told to do is the law to pay heed to the miserable agonising plight of such a
person? For the law to understand how not only the timid but also the stalwart may in a
moment of crisis behave is not to make the law weak but to make it just. In the calm of
the court-room measures of fortitude or of heroic behaviour are surely not to be
demanded when they could not in moments for decision reasonably have been expected
even of the resolute and the well disposed. In posing the case where someone is 'really'
threatened I use the word 'really' in

p155

order to emphasise that duress must never be allowed to be

the easy answer of those who devise no other explanation of their conduct nor of those
who readily could have avoided the dominance of threats nor of those who allow
themselves to be at the disposal and under the sway of some gangster-tyrant. Where
duress becomes an issue the courts and juries will surely consider the facts with care and
discernment."

Further down on p. 918 he says:

"The law must I think, take a common-sense view. If

someone is forced at gun point either to be inactive or to do something positive-must the
law not remember that the instinct and perhaps the duty of self-preservation is powerful

185
and natural? I think it must. A man who is attacked is allowed within reason to take
necessary steps to defend himself. The law would be censorious and inhuman which did
not recognise the appalling plight of a person who perhaps suddenly finds his life in
jeopardy unless he submits and obeys."

Considering this defence in the present case, I am of the view that the defence of duress
or compulsion fails. The threats although may have been uttered were not immediate,
they were as to the future, that he would be shot.

Further accused Mporokoso did not disassociate himself from either accused Mumba or
others. He made himself available to these people. He kept on having meetings with these
people. He kept on going to accused 4's Office. He could have avoided the dominance of
these threats, he could have sought police protection. As I said, the crime of misprision
of treason is a continuous one and there is no evidence that, any of the accused were
always near him so as to keeps the threats fresh. The conduct of the accused was such
that he cannot avail himself to the defence under s.16 of the Penal Code, Cap.146. His
deference fails. I therefore find the accused guilty of the offence of misprision of treason
or contrary to s. 44 (b) of the Penal Code, Cap. 146. and I convict him accordingly.

All accused convicted

186
CHIMBO AND OTHERS v THE PEOPLE (1982) Z.R. 20 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, J.J.S.
27TH JULY AND 24TH AUGUST, 1982
(S.C.Z. JUDGMENT NO. 23 OF 1982)
APPEAL NO.123 OF 1980

Flynote

Evidence - Accomplices - Danger of false implication - Whether one suspect witness can
corroborate another.
Evidence - Confessions - Admissibility of - Proof of use of force through medical reports.
Evidence - Identification - Recognition - Whether need to rule out possibility of honest
mistake.

Headnote

The appellants were convicted of murder. They were alleged to have taken the deceased
and his wife from their home, severely beaten them up and left them in the bush, naked,
tied up and gagged.

p21

The deceased was rendered unconscious and later died. The prosecution witnesses were
the accused's wife, who identified the appellants as the culprits, and the driver of the
truck which transported the appellants, a self confessed accomplice. The appeal was
against the admissibility of confessions of the first and second appellants and the
identification of the third.

Held:

(i) The evidence of suspect witness cannot be corroborated by another suspect

witness unless the witnesses are suspect for different reasons.

(ii) The court must give proper consideration to all issues in deciding whether
confession is voluntary, and may not disregard a medical report in the absence
of expert medical evidence to justify a belief that a severe beating must produce
more serious injuries since the degree of injury is irrelevant to whether a
confession was obtained by force.

(iii) Although recognition is accepted to be more reliable than identification of a

stranger, it is the duty of the court to warn itself of the need to exclude the
possibility of an honest mistake.

187
(iv) For purposes of identification, a proper identification parade must be arranged.

Cases referred to:

(1) Nikutisha and Anor v The People (1979) Z.R. 261.
(2) Mushala and Ors v The People (1978) Z.R. 58.
(3) Mwasumbe v The People (1978) Z.R. 354.
(4) Choka v The People (1978) Z.R. 243.
(5) Musupi v The People (1978) Z.R. 271.

For the first appellant: P. C. Zulu, Zulu and Co.

For the second appellant: C. K. Banda, Lisulo and Co.
For the third appellant: L. J. A. Mwamasika, Legal Aid Counsel.
For the respondent: K.C. Chanda, State Advocate.
___________________________________
Judgment

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

The appellants were convicted of murder. The evidence for the prosecution established
that on the night of 20th August, 1978, the deceased and his wife, PW2, were collected
from their house in George compound, Lusaka, by three men dressed in army uniform.
They mere taken to an army truck in which the driver, PW4, was waiting. Two of the
men and the deceased got into the cab of the truck while the third man and PW2 sat at the
back. PW4 then drove the truck along the Kabwe Road eventually branching off into
bush road leading to Kaluwe. All the while the two men who had got into the cab were
beating the deceased while the third man was beating PW2, demanding to be told where
the deceased kept his money. PW4 stopped the truck at some point on the bush road
already referred to. The deceased and PW2 were

p22

taken out of the truck by the three men in question. They were stripped naked and then
beaten up very severely indeed be those men who kept demanding to be told where the
deceased kept his money. The trio then robbed the deceased and PW2 of various items
before leaving them in the bush unconscious, naked, tied up, and gagged. The following
morning PW2 regained consciousness and observed that her husband was still
unconscious She walked naked and bound to the Kabwe Road where a passing motorist
untied her and referred her to a farmhouse nearby. With the help of the owner of the farm
and others the matter was reported to the police who collected the husband who was still
unconscious and remained in that condition at the hospital where he was taken until he
expired on the 29th August, 1978. According to PW4, a self-confessed accomplice, after
the deceased and PW2 had been left in the bush he had driven the three men back to
George compound where they collected a number of articles from the decease's house.
They had also shared some money, and PW4 was given some. After dropping of the
others near their residences he had decided to keep quiet about the whole incident.
Investigations by the police led to the apprehension of a number of soldiers, including

188
PW4 and the first and second appellants. The second appellant was released after
questioning on 29th August, 1978, only to be re-taken into custody the next day. An
identification parade was conducted and PW2 identified the first and second appellant as
two of the men involved in the attack upon her and the deceased on the night of 20th
August, 1978. Thereafter the police recorded confession statements from the first and
second appellants which were admitted in evidence after trials within the trial, to which
statements we shall revert in a moment.

Further investigations led to the apprehension of the third appellant who consistently
denied the charge. The third appellant was made to sit on bench at the police station with
the first and second appellants and a fourth man. PW2 was then specifically asked by the
police to identify from among them the third assailant who, she was told, had not
previously been on the identification parade, and she duly recognised the third appellant
as such third man. We must say that this was a most undesirable procedure to adopt when
a proper identification parade could easily have been arranged. We agree with the
submission made by Mr Mwamasika that identification obtained in this manner should
generally he viewed as unsatisfactory, if not worthless. The learned trial judge took the
view that this situation was similar to the one that arose in Nikutisha & Anor v The
People (1), and that therefore while proper parade would have been preferable, PW2 had
nevertheless recognised a person she had seen on two different occasions prior to the date
of the incident and as the third assailant who was with her at the back of the truck driven
by PW4. In Nikutisha (1) the police did not deliberately invite the witness to identify.
There, it was by sheer chance or accident that a witness was allowed to be in a position
where he was able to see the suspects arriving at the police station, and before the event
could be stopped, the witness identified one of the suspects

p23

who he had already described. It seems to us that no legitimate parallel can be drawn
between the situation in Nikutisha (1) and the one in this case.

The matter, however, goes much further than this. The learned trial judge was satisfied
that in respect of the third appellant identification by PW2 had been by way of
recognition and was, therefore, reliable. While recognition has been accepted to be more
reliable than identification of a stranger, the trial judge should nevertheless remind
himself that mistakes in recognition even of close relatives or friends are sometimes
made, and hence the need to exclude the possibility of an honest mistake. If PW2's
opportunity for observation on the night in question was no better in relation to the third
appellant than it was in relation to the co-appellants, it follows that, even if the case fell
to be considered as one of recognition., it was the duty of the trial judge to warn himself
of the need to exclude the possibility of an honest mistake. The learned trial judge did not
so warn himself, and his failure to do so was a misdirection. There is a string of
authorities to this effect, such as Mushala & Ors v The People (2), Mwasumbe v The
People (3), and other cases therein referred to. It follows from this conclusion that the
conviction of the third appellant can only stand if, in relation to him, we can apply the
proviso. Since consideration of this aspect raises issues common to all three appellants,

189
we propose to revert to it after we have dealt with those grounds of appeal of the first and
second appellant as did not affect the third appellant.

Both the first and second appellants have argued that their confession statements were
wrongly admitted. The first appellant had challenged his warn and caution statement on
the ground that the police had assaulted him in order to compel him to confess. His
allegation that the beatings had lasted several days was disbelieved. The learned trial
judge believed the police officers who denied the allegations of torture and assault. The
first appellant had attended a clinic for three weeks and produced a medical report in
which findings consistent with his allegation were recorded. He had also exhibited to the
court a scar alleged to have been caused by the police, and another old scar on which he
alleged the police had struck him causing it to give him trouble. In his ruling the learned
trial judge argued that had the first appellant been assaulted as severely as he alleged he
should have sustained more injuries than the medical report disclosed. He also clearly
misapprehended the first appellant's evidence concerning the old scar when he made a
finding that the first appellant had falsely claimed that it, too, had been caused by the
police. No finding was made in relation to the more recent scar nor was any consideration
given to the substance and effect of the uncontroverted medical report which was
produced. Counsel for the first appellant has submitted that these circumstances the
confession statement should not have been admitted. Since similar considerations arise in
the case of the second appellant we shall return to this submission in a moment.

p24

The second appellant also alleged that he had been beaten in order to confess. He, too,
produced a medical report which supported his allegations and which set out the injuries
he had sustained. He had even complained to the magistrates. The learned trial judge
disbelieved the second appellant for the reason that had he been assaulted as severely as
he alleged, the medical card should have listed more injuries than it did, and that the
injuries should have been more serious. Mr Banda has submitted that the issue before the
court was an allegation of beating and to dismiss such allegation on consideration of the
seriousness or degree of injury was to beg the question. He pointed out also that this was
a man who had been questioned and released the day prior to the recording of the
confession, and it was argued that the trial judge should have questioned why he should
confess when he had not done so the previous day. As in the case of the first appellant no
consideration was given to the substance and effect of the medical report. The complaint
to the magistrate and the failure to confess on the first occasion received no mention in
the learned trial judge's ruling. Counsel submits that in these circumstances the second
appellant's confession statement was wrongly admitted.

There is 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 more serious injuries. We do not see that such an argument is even
relevant to an inquiry concerned with an allegation that confession was extracted by

190
force. The issues which we have already referred to were material and called for
consideration if 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 learned 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 their admission was misdirection. The convictions can
only stand if we can apply the proviso, and to this end we now proceed to examine
whether the rest of the evidence was such that had the trial judge not misdirected himself
he must inevitably still have convicted.

The only evidence connecting the appellants with the commission of his offence came
from PWs 2 and 4. PW4 was clearly an accomplice and the learned trial judge quite
properly found him to be such. The greatest danger to be guarded against in the case of
true accomplice is the danger of false implication, and it is therefore on the question of
the identity of his companions that greatest care is called for to ensure that that danger
has been excluded. The learned trial judge found that

p25

PW4's evidence on identity was corroborated by that of PW2. Counsel have argued that
this could not be so. It was pointed out that in relation to PW2 the learned trial judge
made two important findings; the first being a finding that she was a suspect witness for
the reason that she may have had motive to falsely implicate the appellants, and the
second being the finding that her evidence on identification was unreliable on the ground
that the circumstances surrounding the events that night did not provide an opportunity to
make reliable observations. The effect of the first finding was to place PW2 in the same
category as PW4 to the extent that the approach to their evidence would be similar since
the danger to be guarded against was exactly the same. The learned State Advocate
attacks the first finding on the ground that there was no evidence to support it, and that it
would appear from a reading of the relevant passage in the judgment that PW2 attracted
this fairly unfavourable classification simply because she was the wife of the deceased. It
is the duty of trial judge, if the circumstances so dictate, to make a finding regarding the
status of any particular witness, and while different witnesses can be suspect for different
reasons, it obviously does not follow that witness must be regarded as suspect merely
because she happens to be the wife of the victim. We do not apprehend from the
judgment below that PW2 was found to have motive to falsely implicate solely for being
a wife. The learned trial judge had the advantage of seeing and hearing the witness at first
hand and, as a result, he concluded that PW2 may have had such a motive. We must
assume, unless the contrary is too obvious, that trial judge sitting alone as a trier of fact
evaluates the evidence and the demeanour of the witnesses as reasonably as would joy
properly directed and acting reasonably. At any rate, unless it appears quite plainly that
finding is perverse or one which no tribunal acting reasonably could have come to, it is
not open to this court to substitute findings. It has not been shown to us that the learned

191
trial judge had made a finding attracting those criticisms as would justify reversal by
this court and, accordingly, we must now proceed to examine the submission made that
PWs 2 and 4 could not, in the circumstances, corroborate each other.

This submission is entirely valid. There are circumstances when the evidence of one
suspect witness could be corroborated by the evidence of another suspect witness
provided of course that not only is the suspicion for different reasons but the one
supplying corroboration or both of them must be what one might call, for lack of a better
expression, an innocent suspect witness. An illustration of this distinction would be
where one witness is a true accomplice and the other an innocent bystander whose
evidence of identification is not free from the danger of an honest mistake and is for that
reason only a suspect witness. Where however, as in this case both witnesses may have
the same dangerous motive of false implication, the witnesses could not in these
circumstances corroborate each other, and each would require corroboration or support
from some independent witness or other circumstance amounting to something more. The
case of Choka v The People (4) which counsel cited is in point. However, we must point
out that the principle that one

p26

suspect witness could not support the evidence of another suspect witness was related
specifically to the circumstances of that case where the witnesses were suspect for the
same reason; that is, they both had possible interests of their own to serve. That case and
indeed several others (see for example, Musupi v The People (5)) underline the principle
that in every such case the danger of false implication must be excluded before a
conviction can be held to be safe. In the circumstances of this case the approach to the
evidence of PWs 2 and 4 must be the same. There being no other evidence of such weight
that any court would certainly have held that if excluded the dangers of relying on their
evidence, there can be no question of applying the proviso. The convictions cannot stand.
The appeals are allowed.

Appeals allowed

192
EMMANUEL PHIRI v THE PEOPLE (1982) Z.R. 77 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO , JJ.S
27TH JULY ,1982
(S.C.Z. JUDGMENT NO. 21 OF 1982)
APPEAL NO. 56 OF 1982

Flynote

Evidence - Corroboration - Rape - Elements to be corroborated - Application of

proviso - Whether Appropriate.

Headnote

The appellant was convicted of rape by Subordinate Court and sentenced to two years'
imprisonment with hard labour. On appeal the sentence was enhanced to five years. He
appealed further against conviction on grounds of mistaken identity and against the
sentence as being too severe.

Held:

(i) In a sexual offence there must be corroboration of both commission of the

offence and the identity of the offender in order to eliminate the dangers of
false complaint and false implication. Failure by the court to warn itself is a
misdirection.

(ii) A conviction may be upheld in a proper case notwithstanding that no warning

as to corroboration has been given if there in fact exists in the case
corroboration or that something more as excludes the dangers referred to.

(iii) It is a special and compelling ground, or that something more which would
justify a conviction on uncorroborated evidence, where, in the particular
circumstances of the case there can be no motive for a prosecutrix deliberately
and dishonestly to make a false allegation against, an accused; and the case in
effect resolves itself in practice to being no different from any other in which
the conviction depends on the reliability of her evidence as to the identity of the
culprit.

Cases cited:
(1) Butembo v The People (1976) Z.R. 193.

(2) Katebe v The People (1975) Z.R. 13.

p78

193
For the appellant: In person.
For the respondent: K.C. Chanda, State Advocate.
_________________________________________
Judgment

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

The appellant was convicted of raping the prosecutrix and was sentenced to two years'
imprisonment with hard labour. On appeal to the High Court the sentence was enhanced
to five years and he now appeals against conviction and sentence.

The complainant in this case was at the time eight months pregnant. She was walking
along a road near her village, when a man on a bicycle came up to her. He forced her to
the ground, beat her up and threatened her with death if she refused, and had carnal
knowledge of her without her consent. Throughout the incident she was struggling and
shouting for help. After raping her the man beat her again for not succumbing quietly.
She was bruised and covered in dirt and she was crying. She made an immediate
complaint to several people as confirmed by PWs 3 and 4. She also gave a description of
her assailant and of the bicycle he had. A few moments afterwards PW4 saw the
appellant who fitted the description given, both as to the attire and the bicycle, and
intercepted him, whereupon the appellant dropped the bicycle and ran off into the bush.
The following day the appellant was identified by the complainant when he came to the
village to retrieve his uncle's bicycle. He was apprehended and handed over to the police.

The appellant argues in one of his grounds of appeal that it was not established that the
offence had been committed. With this submission we cannot agree. There was in fact
ample evidence to support the finding that the complainant had been raped. There was
adequate support for her testimony in the evidence of early complaint, her distressed
condition, her dishevelled appearance, and the substance of the medical evidence which
disclosed a state of affairs which was in the doctor's opinion, consistent with having had
something inserted in her private part. All these factors taken together with the rest of the
evidence fully justified the conclusion that the complainant had been raped.

The major ground of appeal advanced by the appellant concerns his identification as the
culprit. In this regard it is to be observed that while the learned trial magistrate quite
properly warned himself of the need to look for corroboration in a sexual offence, it is
clear from a reading of his judgment that he had addressed his mind to that aspect only as
pertained to the commission of the offence. He did not deal with the issue as it related to
the question of identity.

The principles upon which corroboration of the offence is required apply equally to the
second element in the case, namely, the identity of the offender. For as much as there is
always recognised the danger of false complaint, the courts have consistently recognised
an even greater danger, namely, the danger of false implication. The court below had
confined its consideration of the issue of identity to a review of the quality,

194
p79

nature and circumstances of the identification by reason of which the complainant's

evidence was found to be reliable. As will be seen shortly while this finding cannot be
questioned the failure on the part of the learned trial magistrate to warn himself with
reference to corroboration as it related to the identity of the offender must be viewed as a
misdirection.

We must now proceed to consider whether on the facts of this case the proviso should be
applied. As this court has said before, for example in Butembo v The People (1), a
conviction may be upheld in a proper case notwithstanding that no warning as to
corroboration has been given if there in fact exists in the case corroboration or that
something more as excludes the danger to which we have already referred.

We agree with Mr Chanda, the State Advocate, that there can be no question of mistaken
identity in this case. The incident occurred in broad daylight, and judging from the
complainant's ability to give an accurate description, which enables others to spot the
appellant, the opportunity to make reliable observations must have been good. It only
remains to consider whether there exists any likelihood of false implication. As this court
has observed before, for instance in Katebe v The People (2), there are circumstances in
which a woman will make false allegations. In Katebe (2) the examples given were the
protection of a boy friend, or fear of the anger of a husband or a father. The danger to be
guarded against must necessarily vary with the circumstances of each case. It follows
therefore, as was said in Katebe (2), that where in the particular circumstances of the case
there can be no motive for prosecutrix deliberately and dishonestly to make a false
allegation against an accused, and the case in effect resolves itself in practice to being no
different from any others in which the conviction depends on the reliability of her
evidence as to the identity of the culprit, this is a special and compelling ground, or that
something more which would justify a conviction on uncorroborated evidence. We agree
with Mr Chanda that, in the instant case, there are no factors to suggest that any situation
existed to actuate the complainant to falsely single out the appellant, a man previously
not even known to her. We have seen no motive for the complainant to falsely implicate
the appellant and in the circumstances we are satisfied that, notwithstanding the
misdirection, the conviction cannot be upset. The appeal against conviction is dismissed.

The appellant also complains against the enhanced sentence. The sentence imposed by
the learned trial magistrate was increased from two years to five years by the learned
appellate judge who considered the original sentence to have been totally inadequate,
having regard to the condition of the complainant at the time and the brutal manner in
which this offence was committed. We agree. We must point out that rape is a very
serious crime which calls for appropriate custodial sentences to mark the gravity of the
offence, to emphasise public disapproval, to serve as warning to others, to punish the
offenders, and, above all, to protect women. In the circumstances of this case we consider
the enhanced

p80

195
sentence to be neither extravagant nor too severe. It is an entirely appropriate sentence
and the appeal against sentence cannot succeed and it is dismissed.

Appeal dismissed

196
PENIAS TEMBO v THE PEOPLE (1980) Z.R. 218 (S.C.)

SUPREME COURT
GARDNER,AG. D.C.J., BRUCE-LYLE, J.S. AND MUWO AG. J.S.
19TH AUGUST, 1980
S.C.Z. JUDGMENT NO. 19 OF 1980

Flynote

Evidence - Child - Necessity to corroborate evidence given by child.

Criminal law and procedure - No case to answer - Necessity for court to acquit at close of
prosecution case - Effect of evidence given thereafter.

Headnote

The applicant was convicted of burglary and theft. A child of twelve years of age
evidence and although the magistrate found that he was capable of giving evidence on
oath, he did not consider him as a witness who required corroboration. Apart from that
the evidence of this child was led after the close of the prosecution case.

Held:

(i) The evidence of all children who give evidence in court must be corroborated,
Chisha v The People (1) followed.

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

Cases referred to:

(1) Chisha v The People S.C.Z. Judgment No. 4 of 1980.
(2) Hahuti v The People (1974) Z.R. 154.

For the applicant: In person.

For the respondent: N. Sivakumaran, State Advocate
_____________________________________
Judgment

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

The applicant was convicted of burglary and theft, the particulars of the charge being that
he broke and entered a dwelling house and stole personal property to the value of
K293.00. The learned State Advocate, Mr Sivakumaran, does not support this conviction.

The evidence against the applicant was that he had stolen the property concerned and had
handed some of it to a relative who was PW3 and her children. The property was found in

197
the possession of PW3, who was quite obviously a witness with a possible interest of her
own to serve. Some of the property was also found in the possession of the

1980 ZR p219
GARDNER AG DCJ

child, PW4, who was also a witness with a possible interest of her own to serve.
Furthermore the child who was only twelve years of age, although found properly by the
magistrate to be capable of giving evidence on oath, was not considered by the magistrate
as a witness who required corroboration.

The evidence of all children who give evidence in court must be corroborated, in
accordance with the judgment of Silungwe, C.J., in the case of Chisha v The People (1).
The evidence at the close of the prosecution case could not possibly have supported the
conviction had the magistrate properly advised himself. However, when called upon to
make his defence, the applicant called another young child as a defence witness; that
defence witness gave evidence that the applicant had in fact been in possession of the
stolen property. Apart from the fact that a great deal of suspicion attaches to the child,
who was under the influence of PW3, this evidence was led after the close of the
prosecution case, and, before it was led, the magistrate should have found that there was
no case for the applicant to answer. Doyle, C.J., pointed out in the case of Haiti v The
People (2), that it is mandatory for a court to acquit an accused at the close of the
prosecution case if the facts do not support the case against him and no evidence that is
led thereafter can remedy the deficiency in the prosecution evidence.

For that reason we grant this application, which will be treated as the appeal. We allow
the appeal. The conviction is quashed, and the sentence is set aside.

Application granted

198
BENARD CHISHA v THE PEOPLE (1980) Z.R. 36 (S.C.)

SUPREME COURT
SILUNGWE, C.J., GARDNER, AG. D.C.J., AND CULLINAN, AG. J.S
10TH JULY, 28TH AUGUST ,1979, AND 18TH MARCH, 1980
S.C.Z. JUDGMENT NO. 4 OF 1980

Flynote

Evidence - Child of tender years - Necessity for corroboration

Headnote

The case against the applicant rested solely on the evidence of a boy aged fourteen years.
The trial magistrate conducted a perfectly proper voire dire, at the end of which he was
satisfied that the boy was able to give evidence on oath. The issue was whether the sworn
evidence of a child is to be treated like the sworn evidence of any other witness.

Held:

The sworn evidence of a child requires corroboration.

Cases referred to:

(1) R. v Campbell, [1956] 2 All E.R. 272.

(2) Phiri (E) and Ors v The People (1978) Z.R. 79.
(3) D.P.P. v Hester, [1972] 3 All E.R. 1056.
(4) R. v Dossi (1918) Cr. App. Rep. 158.
(5) D.P.P. v Kilbourne, [1973] 1 All E.R. 440.

For the applicant: F. M. Mumba (Mrs), Director of Legal Aid.

For the respondent: K.C.V. Kamalanathan, Senior State Advocate.
____________________________________
Judgment

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

This is an application for leave to appeal against conviction on a charge of stealing K29
in cash from the person of a named complainant. At the end of the hearing we treated the
application as an appeal, allowed the appeal and said we would give reasons for our
decision at a later date; we now do so.

1980 ZR p37
SILUNGWE, C.J.

199
The case against the applicant rested solely on the evidence of Charles Makumba - a boy
aged fourteen years at the time of the trial. The learned trial magistrate conducted a
perfectly proper voire dire in terms of s. 122 (1) of the Juveniles Act, Cap. 217, at the end
of which he ores satisfied that the boy was able to give evidence on oath. In his sworn
evidence the boy described the circumstances in which he said the theft had occurred. He
said that at 1500 hours on 25th May, 1978, he had been selling refreshments at a bus
station in Chingola when, as he attended to the complainant, he observed a man relieve
the complainant of a purse from the latter's waistcoat pocket. The man then dashed off to
a nearby taxi and was immediately driven out of sight. The complainant did not realise
what had happened to him until his attention was drawn to it by the boy. Three days later
the boy identified at the same bus station the alleged thief who turned out to be the
applicant.

The main issue that arises in this case is one whether the sworn evidence of a child is to
be treated like the sworn evidence of any other witness.

It is well-established that as a matter of law, the sworn evidence of child, in criminal

cases, does not require corroboration but that the court should warn itself that there is a
risk in acting on the uncorroborated evidence of young boys and girls; see per Lord
Goddard, C.J., in R. v Campbell (1). As it is necessary to heed the warning, corroboration
of the sworn evidence of a child is, in practice, usually looked for. There need not now be
a technical approach to corroboration: evidence of "something more" suffices. In Phiri
(E) and Ors v The People (2), at p. 107 marginal 14 we said that evidence of "something;
more":

"must be circumstances which, though not constituting

corroboration as a matter of strict law, yet satisfy the court that the danger . . . has been
excluded and that it is safe to rely on the evidence . . . implicating the accused."

It is common cause that in the present case there was no corroboration of the sworn
evidence given by the boy.

Mr Kamalanathan argued that once a child is properly allowed to give evidence on oath
such evidence should be placed on an equal footing as the sworn evidence of any other
witness in respect of which it is not necessary for the court to warn itself.

Clearly, the effect of this submission, if accepted, would be to overturn the well-
established rule of practice in which case the need for the warning and the need to look
for corroboration in all cases invoicing children who give sworn evidence would no
longer arise.

In responding to the argument it is necessary to examine why it is that certain statutory

enactments impose the necessity in some instances of leaving more than one witness
before there can be a conviction and, similarly, why courts have given guidance in terms
which have become established rules of practice. On this, the following passage from the
judgment of Lord Morris of Borth - Y-Gest in D.P.P. v Hester (3), at p. 1059

200
1980 ZR p38
SILUNGWE,C.J.

marginals h and i and at p. 1060 marginal a is both relevant and instructive:

"The accumulated experience of courts of law, reflecting

accepted general knowledge of the ways of the world, has shown that there are many
circumstances and situations in which it is unwise to found settled conclusions on the
testimony of one person alone. The reasons for this are diverse. There are some
suggestions which can readily be made but which are only with more difficulty rebutted.
There may in some cases be motives of self-interest; or of self-exculpation; or of
vindictiveness. In some situations the straight line of truth is diverted by the influence of
emotion or of hysteria or of alarm or of remorse.Sometimes it may be that owing to
immaturity or perhaps to lively imaginative gifts there is no true appreciation of the gulf
that separates truth from falsehood. It must, therefore, be sound policy to have rules of
law or of practice which are designed to avert the peril that findings of guilt may be
insecurely based."

In that case, Lord Diplock spoke to the same effect at p. 1072 marginals f and g:

"But common sense, the mother of the common law, suggests

that there are certain categories of witnesses whose testimony as to particular matters
may well be unreliable either because they may have some interest of their own to serve
by telling a false story, or through defect of intellect or understanding or, as in the case of
those alleging sexual acts committed on them by others, because experience shows the
danger that fantasy may supplant or supplement genuine recollection."

And so it is that by reason of immaturity of mind a child, whether sworn or unsworn, falls
within the category of what may conveniently be called "suspect witnesses" whose
evidence must of necessity be treated as suspect. A conviction which is founded on
suspect evidence cannot be regarded as safe and satisfactory unless such evidence is
supported to such an extent as satisfies the trier of facts that the danger inherent in
placing reliance upon suspect evidence has been excluded.

The sworn evidence of a child is suspect simply for the reason that it is the evidence of a
child - as the child's mind is yet to mature; additionally, it may be suspect, for example,
where the aspect of accomplice evidence or evidence in a sexual case, arises.

Although children may be less likely to be fraudulent or acting from improper motives
than adults yet they are, as Atkin, J., observed in R.v Dossi (4), at, p. 161:

"possibly more under the influence of third persons -

sometimes their parents - than are adults, and they are apt to allow their imaginations to
run away with them and to invent untrue stories."

201
The observations of Lord Morris of Borth - Y-Gest in the previously cited passage from
Hester (3), are also in point in this connection:

1980 ZR p39
SILUNGWE, C.J.

"Sometimes it may be that owing to immaturity or perhaps to

lively imaginative gifts there is no appreciation of the gulf that separates truth from
falsehood."

In D.P.P. v Kilbourne (5), at p. 454 marginals f and g Lord Hailsham of St Marylebone,

L.C., put the matter thus:
"When a small boy relates a sexual incident implicating a
given man he may be indulging in fantasy."

Commenting upon the evidence of two girls - Valerie aged twelve years (sworn) and June
aged nine years (unsworn) - in Hester (3), Lord Diplock said at p. 1076, marginals e and
f:

"What the jury needed to be told as respects the third count

was that the only evidence inculpating the respondent was that of the two children,
Valerie and June; and that in considering whether their evidence could be accepted as
true, they should bear in mind the danger that any child so young as these were,
particularly June, may be incapable of fully understanding or remembering and
describing accurately events that happened at some time past and that young children are
prone to be both imaginative and suggestible."

Although Best in his book on Evidence, 12th edn. para. 158 at p. 147, appears in one
breath to lend support to Mr Kamalanathan's argument, he immediately gives a caveat in
the next breath:

". . . the testimony of children, after they have been subjected

to cross-examination, is often entitled to as much credit as that of grown persons; and
what is wanting in the perfection of the intellectual faculties is sometimes more than
compensated by the absence of motives to deceive. This must not, however, be taken too
literally: some children indulge in habits of romancing, which often lead them to state as
facts circumstances having no existence but in their own imaginations; and the like
consequence is not infrequently induced in other children by suggestions or threats of
grown-up persons acting on their own fears and unformed judgments."

Nokes summarises the position well in his book on Evidence 2nd edn. at p. 454:

"The sworn evidence of a young child, whether accomplice or

not, requires corroboration in practice; and the judge should warn the jury of the risk of
acting on the uncorroborated evidence of such children. There is no fixed rule as to when
children grow out of this category. The evidence of young children is always subject to

202
doubt. Very young children live largely in a world of imagination, and their powers of
observation, understanding, memory and expressions are rudimentary. Most children are
influenced by what they hear from adults, not necessarily by way of deliberate suggestion
or instruction. Yet the evidence of children may be . . . accurate, particularly with regard
to offences committed against themselves."

1980 ZR p40
SILUNGWE, C.J.

As we see it the well-established rule of practice applies to all children who give
evidence on oath.

On the authorities referred to in this case, it emerges that the logical basis upon which the
sworn evidence of a child, whether of tender years or above, which makes it suspect and,
therefore, in need of corroboration, must inescapably be such child's immaturity of mind.
It is the immaturity of mind that directly accounts for a child's susceptibility to the
influence of third persons, fantasy, and lack of appreciation of the gulf that separates truth
from falsehood. It is thus good law that the sworn evidence of a child does not qualify to
be ranked together with the sworn evidence of any other witness concerning which it is
unnecessary for a trial court to warn itself or to look for corroboration.

There is always a degree of uncertainty as to whether a particular witness should be

treated as a child for the purpose of deciding whether his evidence requires corroboration.
However, courts will no doubt be guided by the statutory definition of a "child" which, in
Zambia, means a person who has not attained the age of sixteen years (see s. 122 (1) of
the Juveniles Act).

As we have earlier indicated, there was, in this case, no corroboration of the boy's sworn
evidence. The trial court treated as corroboration evidence which could not conceivably
be treated as such or indeed as "something more". This was a fatal misdirection. For this
reason alone, and as the proviso to s. 15 (1) of the Supreme Court Act could not be called
in aid, the appeal against conviction was bound to succeed.

Apart from the misdirection aforesaid, there were two other misdirections concerning
which the applicant could have succeeded also. The first of these misdirections was the
trial court's failure to allow the applicant to call a defence witness; and the second was the
possibility of an honestly mistaken identification. It is unnecessary for us to delve into the
details of either of these misdirections in view of the misdirection respecting lack of
corroboration of the boy's evidence.

For the reasons given, we granted the application, treated it as the appeal, allowed the
appeal, quashed the conviction and set aside the sentence

Appeal allowed

203
CHARLES NDALA NDALA v THE PEOPLE (1980) Z.R. 183 (S.C.)

SUPREME COURT
SILUNGWE, C.J., BRUCE-LYLE, J.S. AND CULLINAN, AG.J.S.
8TH APRIL AND 6TH MAY, 1980
S.C.Z. JUDGMENT NO. 11 OF 1980.

Flynote

Evidence Child of tender years - Voire dire - Proper procedure.

Facts and holdings as stated in the judgment below.

Cases cited:
(1) Sakala v The People (1972) Z.R. 35.
(2) Zulu v The People (1973) Z.R. 326.
(3) Phiri v The People (1975) Z.R. 30.

For the appellant: In person.

For the respondent: K. C. V. Kamalanathan, Senior State Advocate.
___________________________________
Judgment

CULLINAN,AG. J.S.: delivered the judgment of the court.

The appellant was convicted of stock theft. On 8th April, 1980, we allowed his appeal
against conviction stating that we would give our reasons therefore at a later stage. We
now give those reasons.

A stolen cow, the subject of the charge, was allegedly found in the possession of a boy
aged twelve years. The latter testified that the cow was left in his care by the appellant
and his co-accused and that he accepted it under duress. As the learned trial magistrate
observed, that was the only evidence against the appellant. Before receiving the young
boy's evidence the magistrate concluded that he was a child of tender years and held a
voire dire. After questioning him he recorded:

"Order: The court is satisfied that the witness is of sufficient

intelligence to justify the receipt of his evidence. He also understands the duty of
speaking the truth. His testimony will be sworn."

The learned trial magistrate did not record whether or not he had concluded that the
young boy understood the nature of an oath. If the magistrate was satisfied that he did
then the young boy could have been sworn in the ordinary way without the necessity of
reaching the conclusions recorded. The word "sworn" quoted above however was
apparently first written as "unsworn" and was then amended to read as "sworn". The
learned trial magistrate did not in fact record that the witness had been duly sworn. To

204
complicate matters the learned magistrate referred in his judgment to the young boy's
evidence as "unsworn".

What the Court of Appeal said in the case of Sakala v The People (1) at p. 36 applies
equally to this case, namely:

". . . the record does not enable this court to satisfy itself that
the trial court has appreciated and carried out its duty."

1980 ZR p184
CULLINAN, Ag. J.S.

We can only regard the voire dire as being defective - see also Zulu v The People (2) at p.
328. No question of a re-trial arises however. The learned Senior State Advocate, Mr
Kamalanathan indicated that the State did not support the conviction and very properly
drew our attention to further defects in the trial. He submitted that the learned trial
magistrate never considered whether the young boy, found in possession of the stolen
animal, might be a witness with a possible interest to serve; there was in any event no
corroborative or supporting evidence and the learned trail magistrate's conclusion in
regarding a question, asked by the appellant of the young boy in cross-examination, as
supporting evidence must amount to a misdirection; the latter's evidence was
contradictory; further, the learned trial magistrate made no reference whatsoever in his
judgment to the appellant's sworn evidence in his defence. We agree with these
submissions. For all of the above reasons we allowed the appeal and set aside the finding
and sentence.

In passing we wish to repeat the observations by this court in the case of Phiri v The
People (3) at p. 31:

"The effect of section 122 of the Juveniles Act (Cap. 217) has
been set out by this court in a number of recent cases (see for instance Zulu v The People
(2) and the cases there cited) and we do not propose to set out again the proper procedure
and tests as explained in those cases. It seems necessary however to urge that these cases
be studied."

Appeal allowed

205
ENOTIADES v THE PEOPLE (1965) Z.R. 144 (H.C.)

HIGH COURT
PICKETT, J.:
27TH OCTOBER ,1965

Flynote and Headnote

[1] Criminal procedure - Appeal in general - duty of appellate court - questions of

fact:

Even where an appeal turns on a question of fact, the appellate court's duty is to re-
hear the case, maintaining sensitivity to the great advantage of the trial judge in
determining issues of credibility but realising at the same time that factors other than
manner and demeanour (on which the trial judge's advantage is based) affect issues of
credibility.

[2] Evidence - Corroboration - ambiguous confession not corroboration of testimony

containing discrepancies by juvenile thieves:

The ambiguous statement 'Yes, I am in trouble' does not sufficiently corroborate

testimony of two juvenile thieves containing discrepancies.

Cases cited:
(1) R. v Baskerville [1916] 2 K.B. 658.
(2) Chiteta v R. 1960 R. & N. 199.
(3) Coghlan v Cumberland (1898) 1 Ch. 704.
(4) R. v Schama and Abramovitch (1914) 11 Or. App. R. 45; 84
L.J.K.B. 396.

For the appellant: Magnus and Jones.

For the respondent: Cave, Asst. State Advocate.
_________________________________________
Judgment

PICKETT, J.: This appellant appeared before the learned senior resident magistrate,
Kitwe, on the 24th day of September, 1965, and on subsequent days upon a charge of
receiving stolen property contrary to section 286 (1) of the Penal Code, Chapter 6 of the
Laws of Zambia, involving a considerable quantity of cigarettes, of unknown value. At
his trial the appellant pleaded Not Guilty to the charge, but he was convicted and on the
9th day of October, 1965, he was sentenced to six months' imprisonment with hard
labour. From his said conviction and sentence he now appeals to this High Court, and his
appeal has been conducted by Mr Magnus, QC, who also conducted his defence in the
lower court.

206
Before proceeding to deal with this appeal, the facts of the case may be stated very
briefly in the following terms: Premises known as the Eskimo Hut, Strand Avenue,
Kitwe, were broken into in the early hours of the morning of the 22nd day of August,
1965, and a large quantity of a varied assortment of cigarettes were stolen. This crime
was committed by P.W.2, a juvenile of 13 years, and P.W.3, another juvenile of 11 years,
assisted by at least one other person unknown, and according to the evidence of these two
juveniles, they carried these stolen boxes of cigarettes to the premises of the appellant,
where they left them with the appellant, who they say told them to come back later.

p145

There were a number of discrepancies in the evidence of these two juveniles, all of which
have been most properly pointed out to me by Mr Magnus.

The version of the appellant was a denial of the stories told by P.W.2 and P.W.3, and an
assertion that all he knew about these cigarettes was the report he received from his
employee Mrs Kontou to the effect that she had found the cigarettes at the rear of the cafe
and had placed them in the company's van before telling the appellant where she had
found them. This version was in the main fully supported by the testimony of Mrs
Kontou. There were a number of slight discrepancies in the evidence of the two main
defence witnesses, and it is the submission of the defence that the learned magistrate
tended to ignore the discrepancies in the evidence of P.W.2 and P.W.3, whilst he attached
great significance to the discrepancies in the testimony of the defence witnesses.

At the outset of this appeal, Mr Magnus intimated that he would argue it purely as an
appeal against conviction and accordingly regard should be had only to grounds 1 to 6 of
the grounds of appeal submitted.

First of all I shall deal with grounds 3 and 4 which are in the following terms:

" 3. There was no or no sufficient corroboration of the evidence of

the admitted accomplices.
4. That the learned senior resident magistrate misdirected
himself in law in holding that there was corroboration or sufficient corroboration of the
said evidence.'

According to the learned magistrate's judgment, vide page 10 thereof, he observes:

" I find that the remark in these circumstances corroborates

the evidence of the thieves, the remark being the one made by the appellant to Inspector
Young, 'Yes, I am in trouble'."

The question of what are the essentials of corroboration was fully set out in the judgment
of Viscount Reading, C.J., in the case of R .v Baskerville [1916] 2 K.B. 658, and as these
essentials were obviously well known to the magistrate, since he referred to this case in
his judgment, I shall not quote this case in detail.

207
[1] I have given my fullest consideration to this remark by the appellant, and to the whole
of the circumstances in which it was made, in the light of paragraph 813 - headed
'Ambiguous Confessions' - contained in the Tenth Edition of Phipson on Evidence. After
such consideration, I am of the opinion that the learned magistrate was in error in finding
that the only significance he could attribute to the remark in those circumstances was that
the appellant had a guilty mind concerning cigarettes and in treating this remark as
corroboration.

p146

Accordingly this leaves me with the consideration of the final paragraph of the
magistrate's judgment, 17, which reads as follows:

" Had there not been corroboration of the accomplice's

evidence I should nevertheless, bearing in mind the great risk of so doing, have convicted
the accused on the uncorroborated evidence of the thieves because I feel absolutely
certain that their uncorroborated evidence is true."

This in effect means, Mr Magnus submitted, that the magistrate was prepared to accept
the uncorroborated testimony of two self-confessed thieves; two undoubted accomplices
and juveniles of the age of eleven and thirteen years respectively, whose testimony
contained a number of discrepancies, regarding one of which the magistrate frankly
states:

" I can make no attempt to reconcile,"

to the testimony of the defence witnesses, against whose characters before this affair no
aspersions could have been cast, as regards their honesty.

[1] The approach which should be adopted by an appellate court when it is dealing with
an appeal on questions of fact from the decision of a judge sitting without a jury, has been
the subject of a considerable number of decisions. The only quotation I shall make in this
judgment is from the judgment of Tredgold, C.J., in Chiteta v R. 1960 R. & N. 199, at
page 204 where he quoted with approval a passage from the judgment of the Master of
the Rolls in Coghlan v Cumberland (1898) 1 Ch. 704, which reads as follows:

" The case was not tried with a jury and the appeal from the
judge is not governed by the rules applicable to new trials after a trial and verdict by a
Jury. Even where, as in this case, the appeal turns on a question of fact, the Court of
Appeal has to bear in mind that its duty is to re-hear the case, and the Court must
reconsider the materials before the judge with such other materials as it may have decided
to admit. The Court must then make up its own mind, not disregarding the judgment
appealed from, but carefully weighing and considering it; and not shrinking from
overruling it if on full consideration the Court comes to the conclusion that the judgment
is wrong. When, as often happens, much turns on the relative credibility of witnesses who

208
have been examined and cross-examined before the judge, the Court is sensible of the
great advantage he has had in seeing and hearing them. It is often very difficult to
estimate correctly the relative credibility of witnesses from written depositions; and when
the question arises which witness is to be believed rather than another, and that question
turns on manner and demeanour, the Court of Appeal always is, and must be, guided by
the impression made on the judge who saw the witnesses. But there may obviously be
other circumstances, quite apart from manner and demeanour, which may show whether a
statement is credible or not; and these circumstances

p147

may warrant the Court in differing from the Judge, even on a

question of fact twining on the credibility of witnesses whom the court has not seen."

It seems to me that if the learned magistrate had given full and fair consideration to the
uncorroborated testimony of these two juvenile accomplices, containing the discrepancies
to which I have previously referred, and to the evidence of the appellant and Mrs Kontou,
he must at the very least have felt a reasonable doubt as to the guilt of the appellant.
Moreover, I would also say that, in my opinion, the principles enunciated by Lord
Reading, C.J., in the case of R. v Schama and Abramovitch (1914) 11 Cr. App. R. 45,
regarding the consideration of an accused person's explanation in a case of receiving
stolen property, are fully applicable to a case of receiving stolen property contrary to
section 286 (1) of the Penal Code, Chapter 6 of the Laws of Zambia.

In these circumstances, therefore, I shall allow this appeal, reverse the finding and
sentence, and acquit the appellant.

Appeal allowed.

209
GREEN MUSHEKE KUYEWA v THE PEOPLE (1996) S.J. 8 (S.C.)

SUPREME COURT
NGULUBE, C.J. CHIRWA AND MUZYAMBA, JJ.S.
23RD JANUARY AND 20TH FEBRUARY, 1996.
(S.C.Z. JUDGMENT NO. 2 OF 1996)

Flynote

Criminal law - Murder - Proof of - Circumstantial evidence - Evidence of young child

together with other circumstantial evidence.

Headnote

The appellant had been convicted in the High Court of murdering a young girl. The
evidence presented to the Court consisted of evidence (by a young girl) that she had
seen the deceased in the company of the appellant shortly before she disappeared; that
when a policeman requested the appellant to accompany him to a police station without
giving any reasons therefor, he ran away; and that the appellant and a subsequently
deceased co-accused had led the police to the place where the decomposing body of the
deceased child was found. On appeal it was argued that the Court should not have
accepted the evidence of the child particularly as she had been present with her aunt at
the time of seeing the deceased and appellant together and her aunt had not been called as
a witness and that the evidence of the appellant having run away was not evidence of
guilt, who testified that the appellant tried to escape after he was asked to accompany the
officer to the Station. The prosecution case was further that the appellant and the late co-
accused led the police to the place where the decomposing body of the child was. The
appellant appealed on grounds that the prosecution evidence was wrongly received.

Held:

(1) That what was a child of tender years was not defined and it was largely for the
good sense of the trial court: the witness had given acceptable evidence which
was corroborated. No assumption either way could be made about the absence
of the aunt to testify: there was nothing to show that she maight have given
evidence favourable to the appellant.

(2) That although the evidence of running away was not on its own conclusive
evidence of guilt, it was clear that the trial Judge had relied upon the totality of
the various pieces of evidence. The evidence was sufficient upon which to base
a conviction.

Appeal dismissed.

Cases referred to:

1. Chibwe v The People (1972) Z.R. 239

210
2. Chewe v The People (1974) Z.R. 18
3. Mpofu and another v The People S.C.Z. Judgement No. 5

For the appellant: Mr. V.A.L. Kabonga, Director of Legal Aid

For the respondent: Mr. J. Mwanakatwe, Principal State Advocate
_______________________________________
Judgment

NGULUBE, C.J.: delivered the Judgment of the Court.

The appellant was sentenced to suffer capital punishment in consequence of his

conviction on a charge of murder. The particulars of offence alleged that the appellant
and another man (since deceased), on 30th January 1990 at Mongu murdered Sanana
Nyambe. The deceased was a school girl aged nine years and the evidence, especially
the postmortem report, showed that she was the victim of a gresome murder in which
certain parts and organs were removed from the body. The evidence showed that the
deceased duly attended class at her school on 30th Janaury 1990 and knocked off at
15.40 hours when class was dismissed. She did not return home to her gradmother
(PW1) and she was missing from class on the next day. Her mutilated body was found
on 6th February 1990.

The prosecution case was that PW3 - a thirteen year old girl who attended the same
school as the deceased - recounted how she and her aunt had on 30th Janaury,1990,met
the appellant walking in company of the deceased. She knew the deceased as a school
mate and gave an accurate description of what the deceased wore and what she carried.
Apart from her bag, the deceased was said to have been also carrying the appellant's
white shoes. The witness knew the appellant before and described what he wore. Above
all, PW3 described how her aunt had stopped to greet each other with the appellant and to
find out where the appellant was coming from and his responses. The evidence of PW3
received on oath after a voire dire and was the subject of submissions on behalf of the
appellant. The other prosecution evidence was that given by PW7, a police officer, that
upon requesting the appellant to accompany him to the Station and when he had not yet
explained to the appellant in what connection the request was made, the appellant
pretended to buy cigarettes but suddenly ran away, was chased and caught after the
witness fired a warning shot in the air. The prosecution case was further that the
appellant and the late co-accused led the police to the place where the decomposing body
of the child was. The witness PW9 recounted how the appellant and the late co-accused
each particupated in the leading while each accused the other to have killed the deceased.
All these aspects formed the basis for submissions and arguments in this appeal.

The learned Director of Legal Aid has criticized the reception and acceptance of the
evidence of PW3. As to the latter aspect, it was argued that the evidence might have
been untrue and that in any event it was possible that the appellant and the deceased later
parted company and went their separate ways. We accept that if this evidence had stood
alone, it would not have been a satisfactory foundation on which to rely for an inference
of guit on such a serious charge. There was, of course nothing to support the suggestion

211
that the witness was not truthful. On the contrary the learned trial judge had noted on the
record that the young witness was "calm, fluent and composed" whilst in the witness box
and that, in view of the other evidence in the case, she had been corroborated. The
criticism relating to the reception of PW3's evidence was on the argument and submission
that no proper voire dire had been conducted. The authority cited for this was Chibwe v
The People (1) and the argument was that the record should have shown the actual
questions put, the answers given and the conclusions reached by the court.

It was submitted that in default the evidence of PW3 was wrongly received and we
should discount it. The learned trial judge kept the record in narrative rather than
verbatim fashion, both of which are perfectly legitimate ways. It is obvious that what
were recorded as answers given by PW3 in the voire dire were the amalgam of the
questions asked and the responses elicited. We do not see that the detailed discussion
recorded can be regarded as an inadequate inquiry. The learned judge came to the
conclusion that the child witness fully understood why she was in court and the nature of
the oath of a witness. We are unable to fault the court below.

In any case, as we said in Chewe v The People (2) what is a child of tender years is not
defined and it is largely for the good sense of the trial court. The rationale behind the
caution attaching to the evidence of children of tender years can no longer legitimately
extend to any irrational assumption that all children are untruthful. The witness gave
acceptable evidence which was corroborated.

The appellant complained in his own written argument that PW3 should not have been
relied upon in the absence of any evidence from her adult aunt who was with here but
was not called as a witness. There is nothing on the record to explain the non-calling of
the aunt or what had become of her, especially that she was on the list of witnesses
supplied under the summary committal procedure. In the circumstances and since all we
have to go by is the case record, we can make no assumptions either way. There is
nothing on the record to show that the defence raised an issue or made any request in that
behalf or that she might have given evidence favourable to the appellant. We do not
accept the appellant's arguments on this issue.

The next point taken up by the learned Director of Legal Aid concerned the evidence of
PW9, the police officer who said the appellant and the late so-accused each led the police
to the body and accused each other of the murder.The learned Director asked us to extend
the principle in Mpofu and Another v The People(3) to the evidence of mutual
accusations by suspects so that the exact words used by each should be stated. In Mpofu,
we reiterated the principle that where a number of accused persons are alleged to have led
the police to where incriminating evidence is found, it is essential for the trial court to
ascertain the role played by each so as to indicate precisely who had the guilty
knowledge. In the instant case, PW9 had stated what each suspect did, thus satisfying the
principle in Mpofu. With regard to the suspects accusing each other, the principle in
Mpofu has no application. It is not uncommon that when witnesses narrate what
someone said the substance is given rather than the very words verbatim. There is, in
truth, no merit in the submission.

212
With regard to the evidence of PW7 that the appellant took to his heels when an innocent
person would not do so, the submission was that, standing on its own, it would not be
conclusive evidence of guilt. This is a valid submission. However, as the learned
Principle State Advocate correctly submitted, it was clear that the learned trial judge
relied upon the totality of the various pieces of evidence.

There was in this case a very strong circumstantial case which the learned trial judge
amply described and relied upon. The appellant was the last person seen with the child
after she knocked off from school; he attempted to flee from the police when asked to
accompany the officer PW7 who had, at that stage, not even disclosed why the appellant
was to go to the police station; the appellant effectively played his part in leading the
police to the badly mutilated and decomposing body of the child. Furthermore, he and
the dead co-accused accused each other, which was evidence against the maker of the
incriminating accusation.The circumstantial case had attained such a degree of cogency
the inference could not be resisted that the appellant was guilty of the murder.

The appellant personally filed an alaborated written submission which we have

considered. He has largely argued against the acceptance of the prosecution evidence as
being credible. He has not demonstrated how the court below which had the advantage
of seeing and hearing the witnesses at first hand had made any mistake in accepting the
witnesses as telling the truth. He himself had opted to remain silent, a course he was
perfecly entitled to take. However, the trial court could not then start to speculate what
defences or explanations the appellant might have had. Its duty was to come to a
decision on the only evidence it had heard.

The appeal against conviction is unsuccessful. With regard to the appeal against
sentence, such sentence is still mandatory unless the case is covered by extenuation or
other statutory exemption. The learned Director made a bold submission that there was
no malice aforethought. If that were the case, the capital charge itself would not have
stood. But in fact the post mortem report and the via testimony described horrific
mutilation in the typical fasion of what have come to be described as ritual murders. The
learned trial judge had fully considered these matters and concluded that capital
punishment was warranted. We agree. The appeal against sentence is also dismissed.

Appeal dismissed

213
DOROTHY MUTALE AND RICHARD PHIRI v THE PEOPLE (1997) S.J. 51
(S.C.)

SUPREME COURT
M.M.S. W. NGULUBE, C.J, SAKALA AND MUZYAMBA, JJ.S.
6TH MAY AND 12TH AUGUST, 1997
S.C.Z. JUDGMENT NO. 11 OF 1997

Flynote

Criminal law - Inferences to be drawn - Inference drawn where nothing to exclude that
inference - Where doubt exists it must be resolved in favour of accused.

Headnote

Where two or more inferences are possible, it has always been a cardinal principle of
criminal law that the Court will adopt the one that is more favourable or less favourable
to an accused if there is nothing to C exclude that inference. Where there are lingering
doubts, the Court is required to resolve such doubts in favour of the accused.

Held:

(i) Where two or more inferences are possible, it has always been a cardinal
principle of the criminal law that the Court will adopt the one, which is more
favorable to an accused if there is nothing in the case to exclude such inference

(ii) There was nothing in this case to exclude an inference favourable to the
accused

For the appellant’s: Mr. S. Malama, of Jaques and Partners

For the respondent: Mr. M .Mukelabai, Senior State Advocate
__________________________________
Judgment

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

The first appellant received a sentence of five years; three of them suspended, for
manslaughter. The second appellant who was a juvenile at the time was sent to a
reformatory for the same offence. In addition, the first appellant was fined for an assault.
The prosecution case was that on 21st April 1994, the deceased Charles Musonda and
one Ogily Sinyangwe were at Kansenshi Market in Ndola when the first appellant came
with the second appellant and two other men. The deceased and his companion were
accused of earlier on having tried to steal a motor vehicle from the appellant. The
appellants and two other men started beating the deceased. Marketers tried to stop the
beating and to suggest that the suspects be taken to the police, the first appellant is said to

214
have refused to do so. In the process, the appellant’s group is said to have assaulted the
bystander who tried to intervene and the first appellant tore PW6’s skipper and struck her
on the head with a bunch of keys, causing an injury.

It was the prosecution’s case that the appellant put the suspects in the first appellant’s car
and drove away with them and that shortly afterwards, the deceased died from further
beatings meted out on Bombesheni Road near the first appellant’s residence. Some of the
marketers, such as PWs 1 and 2, claimed that when news of the death reached them, they
went to Bombesheni Road and saw that the deceased was one of the suspects earlier
beaten up by the appellants at the market. Other marketers, such a PW6, deposed that in
fact none of them went to the scene. There was evidence also that the first appellant went
with her husband to the police where the husband reported that members of the public
had beaten up two criminals who wanted to snatch a motor vehicle from his wife who had
shouted for help and that one of the criminals was lying unconscious on Bombesheni
Road. There was also evidence from Ogily Inyangwe’s wife who was PW2, that he was
unwilling to come to testify against the appellant.

A major issue at the trial concerned the identity of the deceased and the linkage between
the assaults at the market and those on Bombesheni Road; that is to say, was the deceased
one of the two men who were beaten up at the market? The learned trial Judge made a
number of important findings. While the marketers stated that the incident at the market
took place at 11:00 hours, PW8 stated that he had given a lift to the deceased and Ogily
and that he had dropped them off at the market shortly after 12:30 hours. The learned trial
Judge resolved the discrepancy in favour of PW8 on the ground that he was literate while
the marketers were illiterate and making an uneducated guess. The defence were relying
on the discrepancy as one of the grounds for the contention that there was no link
between the suspects beaten up at the market at 11:00 hours and the deceased. The
learned trial Judge made an important finding on the question of whether or not any of
the marketers had gone to see the body on Bombesheni Road. He found as a fact that
none of them had in fact gone to see the body. We will return to this finding a little later
when we deal with the submissions and the consequence of the finding in effect that the
witnesses had lied on a very major point for the remainder of their evidence.

The learned trial Judge found that there was ample circumstantial evidence supported by
the testimony that the two suspects were thoroughly beaten up; that the first appellant led
the group of assailants; and that all the marketer witnesses had said that the first appellant
had openly declared the desire to kill the men or at least to give them a severe beating.
The learned trial Judge was of the view that the only inference to be drawn on the
evidence was that the appellants must have continued to assault the suspects until the
deceased died and that there could not have been an instant justice mob as alleged by the
first appellant’s husband in his report to the police. Although the court accepted that
there was no evidence from any witness linking the appellants to the deceased, the court
found that – and we quote that last sentence in the Judgment below – “The first accused
and her husband themselves connected the deceased with the first accused”.

215
In his submissions, Mr Malama said that the grounds of appeal related mainly to the
findings by the Court below on the identity of the deceased, pointing out that the obvious
point to make was that there was no evidence whatsoever directly connecting the persons
who were allegedly assaulted at the market and the one person who was eventually
picked up in Bombesheni Road, who happened to be the deceased in this case. He argued
that the quarrel against the findings by the trial Court hinged on the fact that the gap
between the person assaulted at the market and the body eventually discovered was filled,
not by direct evidence but by inferences made by the Court. It was the contention of the
defence that the deceased in the case was not one of the two men who were assaulted at
the market. In this regard, Mr. Malama drew attention to the evidence of virtually all the
marketeers who gave evidence and who placed the incident at the market at between
10:00 and 11:00 hours in the morning whereas the deceased and Ogily Sinyangwe were
dropped off at the market by PW8 only at 12:30 hours. Counsel complained that the
Judge below drew unsupported and unfavorable conclusions that all the marketeers were
illiterate and were all making uneducated guesses when they mentioned the time. It was
pointed out that the person to provide the linkage should have been Ogily Sinyangwe, the
deceased’s companion, or any marketer who would have identified the body; but
Sinyangwe was reluctant to testify and the learned trial Judge very properly rejected the
evidence of PWs 1 and 2, the marketeers who claimed to have gone to see the body when
in actual fact – as found by the Court- that was not true. Counsel submitted to the effect
that, in the absence of any link; it was wrong to draw an inference from mere supposition
that the first appellant must have driven the two persons to Bombesheni Road and there
continued to beat them. Counsel drew attention to the serious wounds and other severe
injuries suffered by the deceased which were inconsistent with the weaponless assaults on
the two me at the market.

Mr. Malama concluded by submitting that it was unfair and wrong to find that the report
by the first appellant’s husband to the police dispelled doubts about the identity of the
deceased or provided the linkage between the incident at the market and the death of the
deceased. He argued that if the trial Judge had accepted the whole of the statement
alleged to have been made by the husband, then it should have been accepted that there
was a mob which beat up the deceased and the injuries would then have been entirely
consistent with such an occurrence. This, it was submitted, would have had support from
the evidence instead of the inferences that were drawn without any supporting evidence.

In response, Mr. Mukelabai agreed that there was no direct evidence to show that the
body found on Bombasheni Road after 15:00 hours was of one of the two men who were
assaulted at the market. However, he submitted that there was a strong circumstantial
case when the marketeers testified that the appellants beat up two men and later drove
away with them. He argued that the marketeers said the first appellant refused to take the
suspects to the police and announced an intention to punish them herself so that it must
be assumed that she took them to her home and continued to beat them. In respect of this
submission, Mr.Mukelabai relied on the evidence of the same marketeers that were found
to have lied on the major poiont of going to see the body. When a witness is shown to
have lied on an important point, the weight to be attached to the rest of his evidence is

216
considerably reduced. One of the marketeers PW2 even claimed that the first appellant
had announced her residential address to the marketeers that:

“She was taking them to 18 Bombasheni Road where they

wanted to steal and kill them there.''

We find this piece of evidence from a discredited witness who was found to have lied
about going to see the body to be inherently improbable and quite frankly incredible. Mr.
Mukelabai submitted that there was an odd coincidence that an incident happened at the
market and at Bombesheni Road and that this was probably what the learned trial Judge
had in mind when he said that the first appellant’s husband by making a report to the
Police provided the link between the deceased and the appellants. The converse, of
course, is that if the husband had not made any report or said anything, there would have
been no linkage found. We are unable to accept this kind of inference. Mr.Mukelabai
invited us to draw our own inferences and to apply the proviso. He invited us to ignore
the discrepancies regarding the time and to find that it was the same pair of Ogily
Sinyangwe and the deceased who were assaulted at the market and along Bombesheni
Road.

The case rested on the drawing of inferences. Where two or more inferences are
possible, it has always been a cardinal principle of the criminal law that the Court will
adopt the one, which is more favorable to an accused if there is nothing in the case to
exclude such inference. The circumstantial case in this appeal did not exclude the more
favorable references. The factors urged by Mr. Malama were all valid. It is, of course,
quite possible and the suspicion in this regard is very strong that – as Mr. Mukelabai
suggested – the incidents at the market and on Bombesheni Road were related. However,
there is that lingering doubt on account of the various matters herein discussed and we
are required by the criminal law to resolve such doubts in favour of the accused since the
conviction is then rendered unsafe and unsatisfactory.

The appeals against conviction on the manslaughter charge are allowed and the respective
sentences quashed. We do not disturb the result on the assault charge.

Appeal allowed and sentences quashed.

217
PATRICK SAKALA v THE PEOPLE (1980) Z.R. 205 (S.C.)

SUPREME COURT
SILUNGWE, C.J., BRUCE-LYLE, J.S. AND MUWO AG.J.S.
9TH OCTOBER,1979 AND 25TH MARCH ,1980
S.C.Z. JUDGMENT NO. 8 OF 1980

Flynote

Evidence - Circumstantial evidence - Acceptance of.

Headnote

The appellant was convicted of murder of a boy aged four years, Rute with her child aged
four years and the appellant had been travelling together for about two hours. The
appellant proposed love to Rute and on her refusal he assaulted her so severely that she
was rendered unconscious for about eight hours. On regaining consciousness, she found
that her suitcase had disappeared and the child was dead. There was no dispute as to the
appellant's identity nor was the assault challenged. The crucial issue was whether the
appellant caused the child's death. On appeal the appellant denied killing the child and
argued that there was no direct evidence connecting him with the offence.

Held:

The circumstantial evidence was so cogent and compelling that no rational hypothesis
other than murder could the facts in this case be accounted for.

Cases referred to:

(1) Nalishwa v The People (1972) Z.R. 26.
(2) Chigowe v The People (1977) Z.R. 21.
(3) Chinyama and Ors v The People (1977) Z.R. 426.
(4) Petrol v The People (1973) Z.R. 145 (C.A.).
(5) R.v Onufrejczyk, [1955] 1 Q.B. 388; 39 Cr. App. Rep. 1.
(6) Nkumbula v R. 1961 R. & N. 589.

For the appellant: F.N. Mumba (Mrs), Director of Legal Aid.

For the respondent: R. Balachandran, State Advocate.

1980 ZR p206
SILUNGWE, C.J.
_____________________________________
Judgment

218
SILUNGWE, C.J.: delivered the judgment of the court.

The appellant was convicted of the murder of one Fabiano Banda Magamba-a boy aged
about four years.

The circumstances of the case were briefly these. Rute Sakala, a young housewife, had
arrived at Katete from Lusaka on Sunday, 2nd July, 1978. With her son-Fabiano-on her
back, she set out on foot at about 0600 hours to return to her village; she was carrying a
suitcase containing clothes and blankets. Shortly afterwards she was joined by a man-the
appellant-and together they travelled for about two hours talking and chatting. At about
0800 hours Rute felt tired and so she put the child down so that it could walk on its own.
The appellant then proposed love to Rute but this was turned down. Incensed by the
refusal he pulled her into the bush a short distance from the footpath. As the child played
a few metres away, the appellant started to assault Rute-he assaulted her so severely that
she was rendered unconscious for about eight hours.

On regaining consciousness Rute discovered that the appellant, the child and the suitcase
had all disappeared. She then searched in the immediate neighbourhood and there found,
to her horror, the dead body of her child with a cloth belt which had been taken from her
dress tightly wound around the child's neck. She carried the child's body to a nearby
village and was then hospitalised. After her discharge from hospital she readily identified
the appellant at an identification parade held ten days after the incident.

There is here no dispute as to the appellant's identity nor is the assault on Rute by him
challenged. What is challenged, and indeed the crucial issue, is the allegation that the
appellant caused the child's death. There were three grounds on which the appeal was
fought:

(a) that the confession statements allegedly made by the appellant

ought to have been excluded;
(b) that the conviction was not competent in the absence of any
specific medical finding as to the cause of the child's death since death by natural causes
had not been ruled out; and
(c) that in the absence of direct evidence implicating the
appellant with the killing, the child could have been killed by a third party.

The learned State Advocate accepted the submission in regard to the first ground of
appeal and agreed that the alleged confession statements ought to have been excluded on
the ground that when the second statement was made, the inducement in respect of the
first had not been dissipated. In Nalishwa v The People (1), and more recently in
Chigowe v The People (2), we reaffirmed, at pp. 27 and 25 respectively, the settled law
position that where two confessions are made and the first is held not to have been freely
and voluntarily made, the second will be equally inadmissible even though there has been
no fresh inducement, unless it is shown that the previous inducement had ceased to
operate on the mind of the accused.

219
1980 ZR p207
SILUNGWE, C.J.

However, this case is distinguishable from Nalishwa (1), and Chigowe (2), in that here, it
was the second statement, not the first, that was disputed. It is likely that this situation
arose from the fact that the statement on arrest, which happened to be the second in point
of time, was introduced earlier than was the warn and caution statement. In the
circumstances, therefore, it is not open to argument that the second statement tainted the
first. And so, different considerations must apply here, namely, those pertaining to the
exercise of the court's discretion.

During a trial-within-a-trial with regard to the second statement, the appellant gave
evidence to the effect that he had been taken into Police custody on 11th July, 1978, and
been beaten that night and also on the following day from 0800 hours to 1000 hours. He
made a warn and caution statement to a woman detective constable on 12th July, at 1150
hours and another statement to a detective sub-inspector when he was arrested on 13th
July, at 1510 hours. The second statement was made when the Police allegedly said to
him "speak, admit the case". In his ruling, following the trial-within-a-trial, the learned
commissioner said, in part:

"Any beating which he alleges took place on the night of 11th

July and the morning of 12th July cannot relate to the arrest which occurred on 13th July,
at 1510 hours. The lapse oil time between 10 hours on 12th and 15 hours on the 13th is
29 hours. Even assuming therefore that the accused was manhandled on the night of 11th
July and the morning of 12th July, I do not see anything to suggest he was beaten at 1510
hours on 13th July, 1978 or that earlier assaults of 29 hours ago still operated on his mind
. . . I . . . hold that accused was not beaten at 1510 hours on 13th July, and that the reply
then was free and voluntary."

It is a matter for observation that the trial court made no ruling as to whether there was,
or there was not, any truth in the appellant's allegation that he had been subjected to
physical violence from 11th to 12th July. Because of the absence of such ruling, and
notwithstanding the fact that the defence registered no objection as to the admissibility of
the first statement, it became peremptory for the court to consider whether this was a
proper case for the application of the principles of fair conduct, that is, whether the
appellant had been so unfairly or improperly treated in all the circumstances that the
evidence of his alleged confessions desired to be rejected in the exercise of its discretion.
See Chinyama and Ors v The People (3), and Petrol v The People (4). As in Nalishwa (1),
there was in this case no reference made by the trial court to the exercise of its discretion
and so, failure to consider the matter of its discretion in connection with both statements,
constituted a serious misdirection. As we cannot say that had the matter of the exercise of
the discretion been considered by the trial court it must inevitably have admitted the
statements, we are bound to rule that the statements were wrongly admitted.

220
Coming now to the second ground of appeal, the point that there was no specific medical
finding as to the cause of death was well taken. We find it rather intriguing that the doctor
who performed the post-mortem

1980 ZR p208
SILUNGWE, C.J.

examination on the child's body should, in the circumstances of the case, have been
unable to form an opinion as to the cause of death. To exacerbate the situation, the doctor
was not present in the country at the time of the trial and so no light could be shed upon
the medical findings. The question that arises is whether the child could have met his
death by natural causes.

The issue raised in the second ground of appeal seems to have been adequately covered
by the following passage appearing in the trial court's judgment:

"I am bound to assume that natural causes have not been ruled
out unless there are compelling facts to the contrary when it would be totally
unacceptable so to assume. In fact, I find such compelling facts to exist.The child was no
doubt alive before the mother lost consciousness. It was dead when the mother found it at
about 1600 hours when she recovered consciousness. There were bruises on its neck and
suboccipal haematoma. There was a belt wound tightly around its neck. It would be
madness to talk about natural causes in such circumstances. In the event, even though the
medical evidence as to (the) cause of death is uncertain, I am certain, not and of the cause
of death in medical language, but of the type of death the child met, namely that it was
unnatural and certainly not at its own hands."

We are of the view that the learned Commissioner properly directed him self in the
matter. Our view is strengthened by the case of R. v Onufrejczyk (5), where it was held
that on a charge of murder, the fact of death is provable by circumstantial evidence
notwithstanding that neither the body nor any trace of the body has been found and that
the prisoner has made no confession of any participation in the crime. And in Nkumbula
v R. (6), - a case of causing death by dangerous driving - Clayden, F. C. J, delivering the
judgment of the Federal Supreme Court had this to say at p. 593 marginal B:

"That there was not the expert evidence of a doctor as to the

cause of the death of Chitundu is not fatal to the Crown case."

We are satisfied that the circumstantial evidence was so cogent and compelling that on no
rational hypothesis other than murder can the facts in this case be accounted for. The
submission based on this ground therefore fails.

Finally, it was submitted that in the absence of direct evidence implicating the appellate
with the killing, the child could have been killed by a third party.

221
There was, evidence that the appellant had stolen Rute's suitcase together with its
contents and, indeed, a dress identified by Rute to be hers was put in evidence as an
exhibit having been recovered be the Police from a member of the public to whom it had
been given by the appellant. It has been argued that the fact that certain of the article is, in
particular the dress just referred to, were shown to belong to Rute, was evidence that

1980 ZR p209
SILUNGWE, C.J.

implicated the appellant with the offence of theft, not that he was responsible for the
child's death-since this could have been caused by someone else.

As there were no eye-witnesses to the killing, circumstantial evidence must once again be
called in aid. The question is: can it be said that there existed such circumstances as
rendered the commission of the crime by the appellant certain and left no room for a
reasonable doubt? The learned commissioner answered this question in the affirmative.
As he put it:

"The accused was there and had access to the child. He had
the opportunity to commit the offence.. Having battered the child's mother and stolen her
suitcase, he had the motive....I cannot see a third party, a stranger who had nothing to do
with the battering of P.W.1 (Rute), who had nothing to do with stealing P.W. 1's
property, simply coming upon a little boy alone in the bush near where his mother lies
unconscious and forthwith proceed to take a belt from the prostrate women end squeeze it
tightly around the neck of such a small child."

We agree that the circumstantial evidence implicating the appellant with the crime
charged is overwhelming. He had the opportunity and the motive. It seems probable to us
that baring beaten up the child's mother and left her for dead the appellant must have
decided to take the child's life in an effort to eliminate the chances of his being later
identified by the child.

In conclusion, although the trial court misdirected itself on the question of admissibility
of the appellant's statements to the Police, there was nevertheless ample evidence on
which it must inevitably have found the appellant guilty as charged. The appeal against
conviction is dismissed.

Appeal dismissed

222
KABWE TRANSPORT COMPANY LIMITED v PRESS TRANSPORT (1975
LIMITED) (1984) Z.R. 43 (S.C.)

SUPREME COURT
SILUNGWE, C.J., GARDNER AND MUWO, JJ.S.
5TH APRIL AND 2ND AUGUST, 1984
(S.C.Z. JUDGMENT NO. 10 OF 1984)

Flynote

Civil procedure - Evidence - Conviction - Evidence of - Admissibility in Civil

proceedings.
Evidence - Criminal conviction - Evidence of - Admissibility in Civil proceedings.
Evidence - English practice and procedure - Zambia Evidence Act - Whether English
practice applies.
Evidence - Sketch plan - Contents.

Headnote

During the hearing of this appeal two specific issues were raised: (i) whether evidence of
previous criminal proceedings could be admissible in civil proceedings; (ii) whether it
was proper for a sketch plan produced in, court to contain data which the original sketch
plan prepared at the scene of the accident did not contain.

Held:

(i) It is of the utmost importance that all details end measurements should be
inserted in the sketch plan at the tinge of viewing the scene of the accident.
Per curium:

(ii) Where there is a specific Act dealing with a matter of law, such as evidence,
there is no default of legislation as envisaged by section 10 of the High Court
Act and English practice and procedure does not apply. Siwingwa v Phiri
(1979) Z.R. 145 disapproved.

p44

Cases cited:
(1) Baker v Market Harborough. Industrial Co-op. Society
Limited, [1953] 1 W.L.R. 1472.
(2) Chanda v The People, (1975) Z.R. 131.

223
(3) Hollington v F Hewthorn anal Company Limited, [1943] 2
All E.R. 35.
(4) Siwingwa v Phiri, (1979) Z.R. 145.

Legislation referred to:

(1) Civil Evidence Act of England, 1968.
(2) Evidence Act of Zambia, Cap. 170.
(3) High Court Act, Cap. 50, s. 10.

For the appellant: A.M. Hamir, Solly Patel, Hamir and Lawrence.
For the respondent: J.H. Jerarey, D.H. Kemp and Company.
__________________________________________
Judgment

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

This is an appeal from a judgment of a judge of the High Court. For convenience we will
refer to the appellant as the plaintiff and to the respondent as the defendant as they were
in the court below. The facts of this case were that the plaintiff's driver was driving on the
Lusaka/Kabwe road. The driver was driving an articulated vehicle consisting of one
mechanical horse and three trailers. In the opposite direction the defendant's driver was
driving a truck towing a trailer behind it. There was a collision as a result of which two
persons in the plaintiff's vehicle were killed but two persons in the defendant's vehicle
survived.

This case arises out of a claim by the plaintiff against the defendant for negligent driving
as a result of which damage was caused.

The learned trial judge found that there was not sufficient evidence for him to decide
which of the two drivers was to blame. He, therefore, in accordance with the
recommendations laid down in the case of Baker v Market Harborough Industrial Co-op
Society Limited (1), found that he had no alternative but to find that both the plaintiff's
driver and the defendant's driver were equally to blame for the accident. He awarded fifty
percent damages on each side.

Mr Hamir, on behalf of the appellant, has argued that the real evidence in the case
indicates that both vehicles were driving towards each other and they were near the centre
line in the road. The learned trial judge found that it was probable that both vehicles may
have been driving near the centre line of the road. He found, however, that there was not
sufficient evidence for him to decide whether or not one of the drivers was more to blame
than the other, and that is the reason why he decided that each was fifty percent to blame.
Mr Hamir, argued that, on the evidence as presented to the court, it was clear that both
vehicles were approaching each other near the centre line of the road, and that, if the
learned trial judge had been correct in his final analysis of the evidence, it must be
accepted that both leading vehicles would have

224
p45

sustained damage to their right hand off sides. He pointed out that, according to the
photographs which were taken after the accident, there was no damage at all to the front
off side of the defendant's vehicle and that, therefore, the judge's finding must inevitably
have been wrong. If Mr Hamir were correct in his argument we would have to agree that
the absence of damage to the right hand side of the front of the defendant's vehicle would
indicate that there could not have been a near head-on collision.

Mr Jearey, for the respondent/defendant, has argued however that the evidence did not
support a finding by the learned trial judge that there was a near head-on collision, rather
he argued, the learned trial judge found that there was insufficient evidence to establish
how the accident happened. He pointed out that the most important witness for the
plaintiff was the plaintiff's third witness who arrived at the scene shortly after the
accident and was a qualified mechanic. This witness gave his views as to the cause of the
accident that, on the curve of the road shown on the sketch plans which were presented to
the court, the defendant's vehicle and trailer must have "jack knifed" and that the
defendant's vehicle must have been on its wrong side of the road because of the evidence
of a deposit of mud and oil stains at what he considered to be the point of impact.
However, this witness, when questioned by the learned trial judge, gave evidence that
made his reconstruction of the accident, to say the least, doubtful because that
reconstruction depended upon one of the trailers being dragged for at least fifty metres
and he said that there was no evidence of such dragging.

Mr Jearey also criticised the nature of the sketch plans which wore submitted to the court.
In this respect, we would draw the attention of the parties to the comments that we made
in the case of Chanda v The People (2), in which we said as follows:

"(ii) The "real" evidence (ie. skid or other tyre marks,

the position of broken glass and dried mud droppings, the Position of the vehicles after
the accident, the nature and lotion of damage to the vehicles and so on), will frequently
enable the court to resolve conflicts between the evidence of eye witnesses, and should be
carefully observed and recorded by the police officer who examines the scene."

In this case, the sketch plans did indicate the information required. However, some of the
measurements were not included in the original sketch plan made at the scene of the
accident but were inserted later. We do not think that this failure affects the results of this
appeal. How ever, we agree with Baron D.C.J., that it is of the utmost importance that all
details and measurements should be inserted in a sketch plan at the time of viewing the
scene of the accident.

The learned trial judge, in his judgment, made it quite clear that he was doubtful whether
the opinion of the plaintiff's third witness, albeit that he was the most immediate witness
after the accident, was reliable.

p46

225
Mr Jearey has argued that it is the responsibility of the plaintiff to prove an act of
negligence by the defendant and, he has quite properly pointed out that the learned trial
judge had the advantage of seeing the witnesses and was able to evaluate their evidence.

A further point on a matter of law has been raised by Mr Jearey, that is whether it is
improper in the courts of this country for evidence of previous criminal convictions to be
produced. Mr Jearey has referred us to the case of Hollington v F. Hewthorn & Company
Limited (3), in which it was held that a certificate of a conviction cannot be tendered in
evidence in civil proceedings. The ratio decidendi of that case was that the criminal
proceedings were not relevant and that they were "res alios inter acta". The case of
Siwingwa v Phiri (4), which was decided in this country by a High Court judge resulted
in a ruling that the Civil Evidence Act 1968 applied in this country by virtue of section 10
of the High Court Act, which provides that the practice and procedure at present
prevailing in the courts of England and Wales shall apply in this country. Mr Jearey
argued that that provision can be called in aid in default of any legislation in Zambia.
There is in fact in Zambia an Evidence Act, Cap. 170,in which there is no provision for
the calling of evidence in criminal proceedings to assist a decision in civil proceedings.
This Court has been asked to decide whether the provisions of section 10 of the High
Court Act enables courts in this country to decide that there is an absence of legislation
when, in this specific instance, there is a definite act dealing with evidence. We have no
hesitation in finding that, where there is a specific act dealing with a matter of law, such
as evidence, in this country, there is no default of legislation as envisaged by section 10
of the High Court Act. The result, therefore, is that there is no provision for convictions
in criminal trial to be referred to and taken note of in a civil trial. For this reason,
therefore, albeit that our remarks are obiter dicta, the decision in the case of Siwingwa v
Phiri (4), must incur the disapproval of this court.

Despite Mr Hamir's argument that the plaintiff's third witness is a qualified motor
mechanic and that he was the first to arrive at the scene of the accident, we agree with Mr
Jearey that this does not assist in an argument that the learned trial judge's decision was
wrong. As Mr Jearey has pointed out, this was a most complicated accident involving a
vehicle towing a trailers and a mechanical horse towing two trailers, and even an expert
in dynamics would probably find it difficult to reconstruct the accident to determine the
cause. The plaintiff's third witness, however, was not an expert in dynamics and his
evidence on the facts before him, which could have been misinterpreted, was of no great
assistance to the learned trial judge.

We dismiss this appeal with costs to the respondent.

Appeal dismissed

226
WILLIAM STEVEN BANDA v THE CHIEF IMMIGRATION OFFICER AND
THE ATTORNEY GENERAL (1994) S.J. 82 (S.C.)

SUPREME COURT
BWEUPE, D.C.J., CHAILA AND MUZYAMBA, JJ.S.
14TH JULY AND 25TH OCTOBER, 1994
JUDGMENT NO. 16 OF 1994

Flynote

Deportation - Warrant of deportation signed by deputy minister - Proof of place of birth -

Section 3 appendix 3 of vol. X of the Laws of Northern Rhodesia

Headnote

The appellant, a member of the opposition party United National Independence Party ,
was detained at Ludazi Prison by the 1st respondent and later transferred to Namuseche
Prison at Chipata. The appellant was detained pending deportation. He later brought an
application under Article 28 of the Zambian constitution before the High Court seeking
declarations to the effect that his fundamental right to personal liberty was contravened;
that the period the appellant stayed in detention was long and therefore infringed article
13 and that the purported deportation Order was null and void.The High Court dismissed
the application and the appellant appealed.

Held:

(i) The finding by the trial court that the appellant and his parents were not
Zambians could not be faulted as it was based on sound logic.

(ii) The deportation warrant signed by the Deputy Minister was valid for all intents
and purposes

(iii) The appellant neither proved that he was born in Northern Rhodesia nor that
one of his parents was born in Northern Rhodesia and therefore the provisions
of section 3 appendix 3 of vol. X of the Laws of Northern Rhodesia did not
apply to him

Cases referred to.

1. Kenmuir v Hattingh (1974) Z.R. 162

227
For the appellant: Messrs S S Zulu of Zulu and Co. and Prof. Mvunga of Messrs
Mvunga and Associates.
For the respondent: Mr Kinariwala, Principal State Advocate
____________________________________________
Judgment

BWEUPE, D.C.J.: delivered the judgement of the court.

This is an appeal from a decision of a High Court (Kakusa J.) dismissing an application
under article 28 of the Constitution seeking for declarations:-

(a) That the appellant's fundamental right to personal liberty was contravened;

(b) That the period the appellant stayed in detention was long and
therefore infringed article 13 and
(c) That the purported deportation Order was null and void.

Further the document sought Orders of prohibition and certiorari; prohibiting the removal
of the appellant from Zambia to Malawi or elsewhere and to quash the deportation order
respectively. The document further sought a declaration that the appellant is a Zambian
and was therefore not a deportable person.

The facts set out by the learned trial judge and which were common cause are these:

(1) On 9th November, 1991, William Steven Banda was placed

under detention at Lundazi prison by the 1st respondent;
(2) On 13th November, 1991 he was moved to Namuseche
Prison at Chipata;
(3) The appellant was detained pending deportation,. He was a
member of the Youth League of the United National Independence Party (UNIP)

In addition to his affidavit the Petitioner gave viva voce evidence. Briefly the Petitioner
said that he was aged 46 years having been born in 1945 in Mporokoso district, Mkanga
Village, Chief Mkanga. He was brought up in Kabwe by his parents and attended school
in Kabwe from about 1952. He took interest in politics at a tender age. In pursuit of
political activities he moved to Lusaka in 1960, then left for Neganega in 1963. He went
to Mumbwa at the end of 1963 where he was for some time a UNIP Youth Constituency
Secretary. He rose to various ranks and finally in Lundazi where he became District
Governor. He said his mother was alive, a Zambian called Balnio Malia Jumbe Chulu
and that she was at Jumbe Village, Chief Jumbe in Chipata. He said his father was also a
Zambia, Simeon Banda, who died in 1960. He said his brothers were (a) Arther Banda
(b) John Banda and (c) Alfred Banda whereas Keliza Banda was his sister. He produced
a National Registration Card No. 248990/11/1 and a UNIP Card No. 790963 issued in
1963. He also produced testimonials issued to him by Mumbwa Boma School on 12th
May, 1970 and Mubwa Secondary Evening Classes School on 19th May, 1970
respectively. As regards the alleged Petitioner’s village I.e Jumbe village in Chipata the

228
Petitioner said he had been at the village at times about three times and was last there in
1991.

The Petitioner called a witness named Arther Joseph Banda refered to as PW1. PW1 told
the court that he was 62 years a peasant farmers and a resident of Jumbe village, Chief
Jumbe. He said he was born in Luanshya, his father was Zambian called Joseph Banda.
His mother was also a Zambian called Maria Balani Chulu who is alive but the father is
dead. PW1 said his mother was too old and could not walk. He said the late Joseph
Banda (PW1’s father ) came from Kakumbi village, Chief Kakumbi. PW1 said he knew
the Petitioner and regarded the Petitioner as his “young brother” . He said the Petitioner
was born to the younger sister of PW1’s mother-Nthenje Chulu. She was a sister of PW1
mother. PW1 was young then. He used to know the father of William Banda in
Luanshya where they stayed together. In Luanshya PW1 stayed with his father. The
father of William Banda was also in Luanshya. The father of William Banda was called
Swedi Banda, a Zambian of Kakumbi village, Chief Kakumbi where the father came
from. The mother of William Banda died in Luanshya when the Petitioner was then kept
by PW1’s mother. Later the Petitioner was brought up

p84

by PW1’s elder brother Labani Malawo Banda. PW1 said the Petitioner was in Kabwe
from 1960 or 1963. He said Swedi Banda and Nthenji Chulu had only one child William
Banda, the Petitioner.

The Respondents called four witnesses. DW1, Dinao Phiri, a housewife aged 48, resident
of Kapata Location in Chipata but a Malawian National. Who deposed that the
Petitioner’s true identity was Saidi Awali, a Malawian National of Nkono village, Chief
Malenga Chazi in Nkhotakota born of Bonomali Awali as his father who is still alive.
She said that in 1965 she received the Petitioner and kept him at her home in Chipata for
two days after which she did not know that the Petitioner was still in Zambia.

DW2, Chief Kasonde Mwamba of Mporokoso in Chisha Mwamba’s village, deposed that
a traditional Chief about 250 villages fall under his authority. Mkanga village is one of
his villages.

As a traditional ruler he has never learned of a person by the name of Simeon Banda
having worked in Mporokoso - that is going by his personal knowledge or knowledge
available to him as a chief. He referred to Bandas but could not recall one being Simeon
Banda.

DW3, Gilbert Chanika Chulu, aged 69, of chanika village, chief Jumbe, said that he knew
Steven William Banda, who was a District Governor in Lundazi. He said he also knew
Suman Joseph Banda who is now dead and was the husband of DW3’ Aunt Malia
Balani Jumbe Chulu and she is still alive. This couple (i.e Suman Joseph Banda and
Malia Balani Jumbe) had children and these were: Leornard Joseph Sumani Banda (died
in 1991); Peter Joseph Banda (now in the village); Dorica Sumani Banda (housewife);

229
Maxwell Joseph Banda (died in April, 1992) Keliza Suman Banda (still alive and lives in
the village); Alfred Mambwe Sumani Banda (alive); and Joseph Sumani Banda (died in
1945 in Luanshya). DW3 said he did not know a person known as Nthenje Chulu. He
knew Mr William Steven Banda who is not his relative in any way. He said he had been
in his village since 1973 when he retired from Government Service. DW3 was born and
has lived at Jumbe Village, Chief Jumbe since 1923. To his knowledge the Petitioner ,
William Steven Banda is not from Jumbe village. At one time the Petitioner visited
DW3’s village in a group from Lundazi who came for a funeral of Lernard Sumani
Banda. DW3 said he knew all the families in his village. He did not know the family of
Steven William Banda. DW3 knew all the sisters of Malia Balani Chulu who was his
aunt and was the sister of his late father Chanika Jumbe Chulu. He said the Petitioner
does not belong to his village.

DW4, Sylvester Chifulu Mulila, an Assistant Chief Immigration Officer investigated this
case, and produced the documents in the bundle of documents.

In his Memorandum of Appeal the Petitioner said he was appealing against the decision
of the learned Judge in the Court below on the following grounds:

1. That the appellant’s purported deportation is bad in law as

Section 26(2) of the Immigration and Deportation Act (cap 122) is concerned with
prohibited Immigrants and not Zambian like the appellant.

p85

2. That Immigration Officers have no authority or power in law

to revoke citizenship granted under the Citizenship Act (Cap 121) or to revoke
Citizenship granted under the Zambian Constitution.
3. That under Section 7(b) of the Constitution of Zambia not
even the Minister has the authority to revoke any person’s Citizenship as this was the
function of the Citizenship Board.
4. That there was no evidence to show that he irregularly or
illegally obtained the National Registration Card, and neither was there evidence to show
that he was a deportable person.
5. That the learned trial judge erred in law by ruling that the
Deputy Minister of Home Affairs was not barred from signing the deportation warrant
which precluded act was in contravention of Section 26(2) of the Immigration and
Deportation Act (Cap 122).

At the hearing of this appeal the learned counsel for the appellant, Professor Mvunga,
added the sixth, seventh and eighth grounds which read:

(6) That being a British protected as on the 23rd October, 1964

the Petitioner became a citizen of Zambia on 24th October 1964.

230
(7) That since the state has not adduced evidence as to the
Petitioner’s country of origin the Petitioner can, in the alternative be deemed to be
stateless and therefore not deportable.
(8) That even if the Petitioner were not a citizen of Zambia he
would be entitled to the status of established resident.

The learned counsel, Messrs S S Zulu and P M Mvunga represented the appellant at this
hearing and both submitted their Heads of arguments separately. Mr Zulu argued ground
4 of the Memorandum of appeal namely that there was no evidence to show that the
Petitioner’s Zambian National Registration Card or his citizenship was irregularly or
illegally obtained and neither was there evidence to show that he was a deportable
person. In other words, there was not sufficient evidence to show that the Petitioner was
not a Zambian citizen or that he was a Malawian. In order to prove that the Petitioner
was a Malawian National the State called DW1, Diano Phiri who testified that the
Petitioner’s name was Saidi Awali from Nkono village Chief Malenga in Malawi and that
his father was still alive in Malawi and was called Bonomali Awali. Mr Zulu argued that
DW1 was a disaster to the State as is shown by the findings of trial judge at page 20 line
6. He said from 20th February, 1992 as is shown at page 46 line 12 to 18th June, 1992
the State Advocate applied for adjournments to have the alleged father of the Petitioner
from Malawi, the state failed to bring Bonomali Awali. The Court ruled that the
proposed witness was in every respect a key witness. However, the State dispensed with
this witness and had it been in a criminal matter requiring proof beyond all reasonable
doubt the Petitioner would have enjoyed the benefit of doubt but this is a Civil litigation.
Mr Zulu argued that this was a misdirection on part of the trial court. Mr Zul;u further
argued that the

p86

court misdirected itself by allowing DW3 Gilbert Chanika Chulu to testify on the basis
that the state advocate informed the court that the witness was in court at the previous
sittings. He said the court should have taken evidence to establish whether DW3 had
actually been sitting in court or not. the court misdirected itself when it found that there
was no legal reason to exclude the evidence of DW3 as such as exclusion would have
been unfair and prejudicial to the respondents. He said DW3 was called after failing to
secure Bonomali Awali to rebut the evidence of the Petitioner and PW1 to show that the
Petitioner was not a Zambian and that he did not come from Jumbe village. He said the
evidence of DW3 on which the judge heavily relied was highly prejudicial to the
Petitioner.

Mr Zulu further argued that the Petitioner had told the Court that he was born at Mkanga
village, Chief Mkanga, Mporokoso district in his area in Mporokoso district but said
there was no chief Mkanga - Kasonde Mwamba (chief) said there was a Banda in his area
before he was born. He argued that failure to call the village headman to produce the
village register to show that the Petitioner was not born in that village was fatal. He said
there was evidence to show that the Petitioner’s father was a Zambian but there was no
evidence adduced that Petitioner’s father was a Malawian or some other nationality. He

231
said the decision of the court that the Petitioner was not a Zambian makes the Petitioner
stateless. If he is not a Zambian and there is no evidence that he is a foreigner the
Petitioner would have to remain in Zambia because there is no country to which he can
be deported to. Mr Zulu went on that a person born in Zambia is a Zambian by birth in
that village headman Mkanga was not called to refute the Petitioner’s evidence that he
was born at Mkanga village in Mporokoso.

After arguing Ground 4, Mr Zulu then proceeded to argue Grounds 1 to 3 and 5. He said
in ground 1 the appellant’s purported deportation was bad in law in that the Immigration
and Deportation Act is concerned with prohibited immigrants not Zambian like the
appellant. He said if the court finds that the appellant is a Zambian then he cannot be
deported under Cap. 122 unless he is a citizen of a country other than Zambia. On
ground 2 he said Immigration Officers have no power or authority in law to revoke
citizenship granted under the Citizenship Act or to revoke citizenship granted under the
Zambian constitution. He argued that if the appellant is a Zambian by decent from his
father and by birth then an Immigration Officer cannot deport him. On ground 3 the
learned advocate said that under section 7(b) of the Constitution not even a Minister has
authority to revoke any person’s citizenship as this was the function of the Citizenship
Board. He argued that this issue did not arise because the Minister who is also the
Chairman of Citizenship Board did not revoke the Petitioner’s citizenship but assumed
that he was not a Zambian and declared him a prohibited Immigrant. On ground 5 he
contended that the learned judge erred in Law by ruling that the Deputy Minister of
Home Affairs was in order by signing the deportation warrant which was in
contravention of section 26(1) of the Immigration Act. He argued that there was no
evidence that the Minister of Home Affairs was absent from Zambia at the material time.
The deportation warrant was null and void.

Professor Mvunga then vividly argued ground 6 and 8. On the ground 6 he said the 1964
Independence Constitution of Zambia grants Zambian citizenship on any person who was
born in the former proteqctorate of Northern Rhodesia or one

p87

of whose parents was born in the former protectorate of Northern Rhodesia or both. He
said there was evidence on record that the Petitioner was born in the Protectorate of
Northern Rhodesia or one of his parents was born in the Protectorate of Northern
Rhodesia. In either instance the Petitioner automatically became a citizen of Zambia as
at Independence of the protectorate of Northern Rhodesia on the 24th October, 1964.
Having become a citizen the petitioner is not deportable and cannot be deprived of
Zambian citizenship even by an Act of Parliament except that he is a citizen of another
country. As regard ground 7 Prof. Mvunga argued that if the petitioner is stateless then
both under the International Law and Domestic Law the petitioner is not deportable
because it is impossible to execute the warrant of deportation as the petitioner cannot be
admitted to any other country.

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On ground 8, he said that there is evidence on record that even if it were established that
the Petitioner was not born in Zambia, he has been in Zambia as far back as 1963 or
thereabouts. On this account he would be entitled to be an established resident, and
therefore not deportable.

The respondent were not without arguments. The learned Principal State Advocate, Mr
Kinariwala, contended that on 14th November 1991 the appellant on application under
Article 28 of the Constitution of Zambia sought an order that he be released from
detention on the ground that Article 13 had been contravened. The application was
supported by the appellant’s own affidavit. In par. 3, 5 and 9 the appellant claimed that
he was a Zambian by nationality and that he was born in 1945 at Mkanga village in
Mporokoso District of Zambia of a Zambian father by the name of Simeon Banda since
deceased and a Zambian mother by the name of Maria Balani Jumbe Chulu who was still
alive and residing at Jumbe village near Chipata and that on 9th November, 1991 he was
arrested by the Immigration Officer, Mr Mulila, as a suspected illegal immigrant and
detained. On 2nd December, 1991 the appellant filed a concurrent summons under
Article 28 of the Constitution wherein he interalia sought declarations to the effect (a)
that his detention was unlawful (b) that the order for his deportation issued by the
Minister of Home Affairs on 18th November, 1991 was null and void as he was not
furnished with reasons for his deportation; and (c) that he is not a deportable person on
the ground that he was a Zambian citizen by birth or by accrued right. On 19th
December, 1991 the respondent filed an affidavit in opposition sworn by Mr Mulila in
which he deposed interalia that from investigations carried out and statements recorded
from (3) three witnesses namely Dinao Phiri Baluwa, Arthur Joseph Peter Banda and
Awali Bwanali Chaseta, it was established that the appellant was a Malawian who was
living in Zambia illegally and that consequently he was declared a prohibited immigrant.
On 6th May, 1992 the respondents filed a supplementary affidavit in opposition sworn
by Mr Mulila in which he deposed that from the further investigations it was established
that the appellant did not as claimed by him attend Kabwe Mine School from 1952 to
1960. Again on 6th May 1992 the respondents filed yet another affidavit in opposition
sworn by one Mporokoso Kasonde Mwamba, Chief of Mporokoso District in which he
deposed that the applicant was not born in the village where he was the Chief and that he
did not know of Simeon Banda as having lived in his village. Mr Kinariwala said that at
the trial the applicant

p88

produced his National Registration Card; UNIP Card, Testimonials issued to him by
Mumbwa Boma School and Mumbwa Secondary Evening Classes School. He also
called PW1 Arthur Joseph Banda as his witness. The trial judge found the evidence of
the applicant contradictory. At the trial the respondents called four witnesses namely
DW1, Dinao Phiri, DW2 Chief Kasonde Mwamba, DW3, Gilbert Chanika Chulu, and
DW4, Sylvester Chipulu Mulila. DW4 produced an extract of school attendance register;
Deportation Warrant; and letter from the district secretary, Mporokoso. After
considering all evidence both viva voce and the documentary the judge came to the
conclusion that on the balance probabilities the appellant had failed to prove that he was a

233
Zambia and his father and or mother were Zambians. He submitted that the issue for the
determination was whether the appellant was a Zambian, not that the appellant was a
Malawian. This issue was an issue of fact and depended upon the credibility of
witnesses. The learned judge did not believe the appellant and his witness.

He believed the evidence of DW2, DW3 and DW4. Mr Kinariwala then referred the
Court to the case of Kenmuir v Hattingh (1974) (1). In which this court held that where
the questions of credibility are involved, an appellate court which has not had the
advantage of seeing and hearing the witnesses will not interfere with the findings of fact
made by the trial judge unless it is clearly shown that he has fallen into error. He
submitted that in this case the judge directed himself properly in assessing and
evaluating all the evidence before him before making a decision on the credibility of
witnesses and did not fall into error. He submitted that this court should not interfere
with the findings of the fact made by the trial judge unless it is clearly shown that he has
fallen into error. He submitted that this court should not interfere with findings of fact.
In the alternative he submitted that under the provisions of section 28 of Cap.122 the
burden was upon the appellant to prove that he was a citizen of Zambia. The appellant
however, having failed to discharge the burden the judge was right in holding that he , the
appellant, was not a Zambian. the judge having found that the appellant was not a
Zambian he fell under the category of prohibited immigrants for lack of any or any valid
permit to stay in Zambia and consequently the Minister of Home Affairs acted lawfully in
declaring appellant’s presence in Zambia to be inimical to the public interest and in
issuing a warrant of deportation which was good in law.

On the ground 2, Mr Kinariwala said that the appellant never claimed in the court below
that he had acquired Zambian citizenship by adoption or by registration and as such the
question of Immigration Officers having no authority or power to revoke citizenship
granted under the citizenship Act or under the Zambian Constitution did not arise. He
argued ground 5 and said that the judge acted correctly in holding that the Deputy
Minister of Home Affairs was not precluded from signing the Deportation warrant. He
then referred the court to section 3 Cap 2 of the Interpretation and General Provisions Act
which defines as “Minister” as including the Member of the Cabinet or other person for
the time being vested with such functions.

We have, as did the learned trial judge, carefully considered and analysed the affidavits
and viva voce evidence adduced; the documents produced and the

p89

submissions and arguments presented by both parties and we cherish the view that the
facts before the court below boiled down to one question namely; was the appellant born
at Mkanga village, Chief Mkanga of Mporokoso District of the Zambian parents, or any
one of them? According to the statement recorded from the appellant the appellant said
that he was born at Mkanga village, Chief Mkanga, District Mporokoso in Zambia in
1945. His parents were Simeon Banda, father, who was born at Jumbe village, Chief
Jumbe, Mabwe and his mother being Mrs Balani Maria Jumbe Chulu who was born at

234
Jumbe, Chief Jumbe Mambwe Chipata. He said he was a Zambian citizen having been
born of Zambian parents in a family of six (6): (1) Leonard Simon Banda; (2) Arthur
John Banda (3) Maria Banda (deceased); (4) William Steven Banda; (5) Keliza Banda;
and (6) John Banda. He denied that he originated from Malawi and that Mr Awali
Bonomali of Nkono village, Chief Malenga Chansi, Nkota kota, Malawi was his father.
He said his father Simeon Banda is deceased but his mother Balani Maria Jumbe Chulu is
alive in Jumbe village, Chief Jumbe, Mabwe Chipata, that his brothers and sisters are all
in Jumbe village, Chief Jumbe Mabwe and their names are Leonard Simon Banda, Arthur
John Banda, Keliza Banda and John Banda.

However, when be gave viva voce testimony the appellant told the court:

“We are four (4) in the family. I cannot recall the names of those who have died, I am
sorry we are not four but eight. We were very young. I was brought up in Kabwe.”

On the evidence the learned judge observed in his judgement:

“This is far from being in the ordinary. This cannot be attributed to anything except
desire not to be truthful although it is not usually considered necessary to record and
remark on demeanour, these answers speak for themselves. The petitioner was highly
uncomfortable merely to state how many sisters and brothers he had. Naturally he was
pressed on this simple point - so he said the brothers who were alive were; Arthur Banda,
John Banda and Alfred Banda. I comment on these aspects because the issue at hand is
credibility. The petitioner was displaying lack of credibility when he appeared to
experience difficulties in responding on such a simple question. As the record shows
Maria Banda is not a sister of Keliza Banda. One wonders too why the petitioner makes
no mention of Labani Malawo Banda. ----In his affidavit and viva voce evidence the
petitioner has maintained that his mother is Malia Balani Jumbe Chulu. Indeed such a
woman exists and is at Jumbe village, too old to come to court to assist. Her first child
was born in 1914. The evidence of PW1 called by the petitioner, is that this is not the
mother of the petitioner but a sister of the petitioner’s mother. This too is a serious
anomaly. It was PW1’s evidence that the petitioner grew up believing that Maria Balani
Jumbe Chulu was his natural mother when in fact a woman called Nthenje Chulu who
died about 1945 or 1946 when the petitioner was too young. On this very point we had
the evidence of DW3 aged 69. This witness testified in English very calmly. He is the
nephew of Maria Balani Jumbe Chulu. He retired from the Civil Service in 1973. He
said Maria Balani Jumbe Chulu was married to Sumani Joseph Banda. The couple had
the following children:

p90

Leonard Joseph Suman Banda; Dorica Suman Banda, Peter Aurther Joseph Banda,
Maxwell Joseph Banda; Keliza Sumani Banda and Alfred Banda. This witness was born
and has lived in Chief Jumbe since 1923. It was his evidence that he knew all the
relatives of Maria Balani Jumbe Chulu. She had no relative by the name of Nthenje
Chulu-----”

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After meticulously analysing and considering all the evidence on record the court made a
finding on facts that the appellant had lied on his father, mother, brothers and sisters. He
has also lied that he was born at Mkanga village, Chief Mkanga in Mporokoso District.

There can be no doubt that from the evidence on record the appellant exhibited himself
to be a big liar. On the facts it is abundantly clear that he lied about his family tree. He
lied about his father, mother, brothers and sisters. He lied to the court that he was born at
Mkanga village, Chief Mkanga of Mporokiso District of Zambian parents. DW2, known
as Chief Mporokoso, denied that there was chief Mkanga in that area. He also denied
there was Simeon Banda. DW3, 69 years old, said he is the nephew of Maria balani
Jumbe Chulu married to Sumani Joseph Banda.

DW3 went further to name the children of Maria Balani Jumbe Chulu as Leonard Joseph
Sumani Banda, Dorica Sumani Banda, Peter Arthur Joseph Banda, Maxwell Joseph
Banda, Keliza Sumani Banda and Alfred Banda. DW3 said he was born and has lived in
Chief Jumbe since 1923, and that he knew all the relatives of Maria Balani Jumbe Chulu
who had no relative by the name of Nthenje Chulu and that DW3 did not know Nthenje
Chulu. The learned judge accepted the evidence of DW2 and DW3 and based his
findings of fact on their evidence in coming to the conclusion that the appellant and his
parents were not Zambians. There were findings for fact which this court has not found
reasons to have them faulted they were findings based on sound logic. We are therefore
satisfied that grounds one to four are collectively and individually without merit.

We do not intend to labour much on ground 5 - but suffice it to say in passing that our
view is that the word “Minister” is defined to include the member of Cabinet or such
other person for the time being vested with such functions (vide section 3 of the
Interpretation and General Provisions Act Cap.2.). Hence the deportation warrant sighed
by the Deputy Minister was valid for all intents and purposes.

We turn now to the sixth ground namely that being a British protected person as on 23rd
October 1964, the appellant became a citizen of Zambia on 24th October, 1964. Prof.
Mvunga leading the onslaught vividly argued that 1964 Independence Constitution of
Zambia grants citizenship on any person who was born in the former protectorate of
Northern Rhodesia or one of whose parents was born in the former protectorate of
Northern Rhodesia (vide section 3, appendix 3, vol. X Lwas of Northern Rhodesia).
Prof. Mvunga argued that there was evidence on record that either the appellant was born
in the protectorate of Northern Rhodesia or one of his parents was born in the
protectorate of Northern Rhodesia. In either instance the appellant automatically became
a citizen of Zambia at independence of the protectorate of Northern Rhodesia on 24th
October 1964.

We have seriously considered this argument and in the ordinary course of things

p91

236
we would easily accept the arguments but also the events have not been shown to be in
the ordinary. The appellant has neither proved that he was born in Northern Rhodesia nor
that one of his parents was born in Northern Rhodesia and therefore the provisions of
section 3 appendix 3 of vol. X have no application in relation to him.

The seventh ground that since the state has not adduced evidence as to the appellant’s
country of origin appellant can in the alternative be deemed to be stateless and therefore
not deportable because it is impossible to execute the warrant of deportation as the
appellant cannot be admitted to any other country.

As to whether or not a stateless person cannot be admitted entry into another country we
are not in a position to say. However, when it was specifically put to the appellant that
his father, Bonomali Awali, and his mother Abili Umali came from Nkono village Chief
Malenga Chansi, Nkota kota in Malawi the appellant denied. The appellant also denied
that he came from Malawi.

All the investigations that were carried out indicated that he appellant and his parents
came from Nkono village, Nkota kota in Malawi. This evidence came from DW1 and
other witnesses. There was no other country than Malawi that was put to the appellant.
The appellant would, therefore, not be a stateless person.

The learned defence counsel then proceeded to argue the eight ground which was that
even if the petitioner and his parents were not citizens of Zambia he would be entitled to
the status of an established resident. He said the petitioner has been in Zambia as far
back as 1963 or thereabouts. On this account he would be entitled to be an established
resident.

The state submitted on this point that according to section 2 of the Immigration and
Deportation Act, Cap 122 of the Laws of Zambia an established resident is the person
who has been ordinarily and lawfully resident in Zambia or the former protectorate or
Northern Rhodesia for a specified period or both. The state has argued that the appellant
does not qualify because he has not lawfully and ordinarily resided in Zambia.

We have considered this argument on an established resident and we agree with the
contention by the state that the appellant must satisfy the Immigration Authorities that he
has been ordinarily and lawfully resident in Zambia or former protectorate of Northern
Rhodesia or both for him to qualify as an established resident. From the facts on record
the appellant has not proved that he has been ordinarily and lawfully resident in Zambia.
The appeal cannot succeed on this ground also. Even if he was, he was liable to
deportation on the ground that he was deported i.e being inimical to the interest of
Zambia.

For reasons foregoing we hold that the learned trial judge was correct on the evidence
before him, to declare and hold that the petitioner is not a Zambian; the findings made by
the high court were factual and we are unable to interfere with them because the trial
judge did not fall into error on any point. The appellant deliberately lied about his father,

237
mother, brothers, sisters and place of birth. He has failed to prove that he was born in
Zambia while the investigations carried out by the state against him showed that his
parents came from Nkono village, Nkota kota in Malawi. Because of this there was no
way it can be claimed that the appellant would be a stateless person if it were held that he
was not a Zambian.

p92

We would dismiss this appeal with costs.

Appeal dismissed.

238
THE ATTORNEY GENERAL, THE MOVEMENT FOR MULTIPARTY
DEMOCRACY v AKASHAMBATWA MBIKUSITA LEWANIKA, FABIAN
KASONDE, JOHN MUBANGA MULWILA, CHILUFYA CHILESHE
KAPWEPWE, KATONGO MULENGA MAINE (1994) S.J. (S.C.)

SUPREME COURT
BWEUPE, ACJ., SAKALA, CHAILA, CHIRWA AND MUZYAMBA,JJ.S.
20TH AND JANUARY AND 10TH FEBRUARY, 1994
S.C.Z. JUDGMENT NO. 2 OF 1994
APPEAL NO. 67 OF 1993 5

Flynote

Article 71(2)(c) of the Constitution of Zambia - Literal interpretation of - Members of

parliament elected on a particular party's tickets - Resignation of said MPs from said
party

Headnote

The four respondents were members of the Movement for Multiparty Democracy
(MMD). On 31st October 1991 they stood for elections on the tickets of the Movement
for Multiparty Democracy (MMD). The won the elections and took their seats in the
National Assembly but later resigned from the ruling MMD. Consequently, the National
Secretary for the MMD wrote to the Speaker of the National Assembly informing him
that the respondents were no longer members of the Party. Later , in consequence of that
official notification by the National Secretary for the MMD, the Speaker wrote to the
respondents that in terms of Article 71(2)(c) of the Constitution of the Republic of
Zambia they ceased to be members of Parliament with effect from 13th August, 1993 a
date when the National Secretary gave the notification to the Speaker. The respondents
then petitioned the Attorney General contending that although they had resigned from
the Party on whose tickets they won the elections, they were still members of Parliament
and, asked the court to declare the Speaker’s decision that their seats were vacant, null
and void

Held:

(i) Article 71(2) (c) is discriminatory in itself against an independent member who
joins any party and against a member who resigns from one party and joins
another party. It is discriminatory and, therefore, unreasonable and unfair and

239
 it is the duty of the court to make it reasonable as it offends against Article 23
of the Republican Constitution. Gardner J S: delivered the judgement of the
court

p7

Cases referred to:

1. R. v Kuntawala (1940) Vol. II L.R.N.R. 79
2. An introduction to the Law of Zambia UNZA School for Law
1974
3. Muhammad Nawaz Shartz President of Pakistan and others
the all Pakistan
legal decisions. (constitutional) petition No. 8 of 1993 P. 481
at P. 615.
4. Seaford court estate Ltd v Asher (1949) 2 K.B. 431
5. Kammins v Zenith Investment Ltd (1971) A.C. 850 AT.
6. Nothman v Barnett Council (1979) 1 H.L.R. 220.
7. Stock v Frank Tomes (tipton) Ltd (1978) 1 W.L.R 231
8. Attorney General v Marcus K Achiume (1983) Z.R. 1
9. D.P.P. v Ngandu and Others (1975) Z.R. 253
10. Barrel (Pauper) v Fordree (191932) A.C. 675 AT 682
11. Becke v Smith (1835) 2M and W. 191 at p.195
12. R. v Tombridge Overseas (1884) 13 Q.B.D. at p. 342
13. Bernes v Marvis (1953) W.L.R. 669 (D.C.)
14. Northern v Barnett Affirmed by the House of Lords in 1979 1
ALL E.R 142

For the appellants: Mr A Kinariwala, Principal State Advocate

Mr E Mwansa, Legal Secretary for the Movement
for Multiparty Democracy
For the respondents: Mr E J Shamwana Sc. of Shamwana and Company
Mr S Sikota and S Nkonde
___________________________________________
Judgment

BWEUPE, A.C.J.: delivered the judgement of the court.

This is an appeal from the decision of the High Court (Mambilima J) by the appellants
against that portion of the judgement which applied the literal interpretation to the
provisions of Article 71(2) (c) of the 1991 Zambian Constitution. The respondents too
have cross appealed against a that part of the judgement which made a finding that they
also signed a Declaration of Liberty and that they had joined a National Party by their
Association.

Briefly, the facts which gave rise to these appeal, as they appear on the evidence on
record were these: The four respondents were members of the Movement for Multiparty

240
Democracy (MMD). On 31st October 1991 they stood for elections on the tickets of the
Movement for Multiparty Democracy. The won the elections and took their seats in the
National Assembly. On the 12th of August, 1993 there was a Press Conference at
Pamodzi Hotel at which all the respondents, except Katongo Mulenga Maine, attended
and announced their resignation from the Movement for Multiparty Democracy. On the
13th of August, 1993 the National Secretary for the Movement for Multiparty Democracy
wrote to the Speaker of the National Assembly informing him that the respondents were
no longer members of the Party. On 27th August, 1993, in consequence of that official
notification by the National Secretary for the Movement for Multiparty Democracy, the
Speaker wrote to the respondents that in terms of Article

p8

71(2)(c) of the Constitution of the Republic of Zambia they ceased to be members of

Parliament with effect from 13th August, 1993 a date when the National Secretary gave
the notification to the Speaker. The respondents then petitioned the Attorney General
contending that although they had resigned from the Party on whose tickets they won the
elections, they were still members of Parliament and, asked the court to declare the
Speaker’s decision that their seats were vacant, null and void.

The Petitioners gave evidence on their own behalf. The first Respondent, Fabian Kasonde
testified that he was elected to the National Assembly on the MMD ticket as Member of
Parliament for Mufulira Constituency. He resigned at the Press Conference of 12th
August, 1993. He said a week after resigning from the MMD, he was attending a meeting
of the National Assembly Public Accounts Committee at the National Assembly Building
when the Sergeant at Arms asked him to go and see a clerk Assistant by the name of Mr.
Chibomba at the National Assembly . He told the Court that Mr.Chibomba advised him
to stay away from the meeting of the Accounts Committee pending the determination
his status as a Member of the Assembly. He said on the 12 th August, 1993 he received a
letter from the clerk of the National Assembly which stated that because he had resigned
from the MMD, he had ceased to be a Member of Parliament .The letter also asked him
to purpose how he was going to settle his indebtedness to National Assembly .He said
he attended the Press Conference at the Pamodzi hotel in his capacity as one of those
members who was going to resign from MMD. He denied signing any document at the
conference. He his presence at that conference was not to support the formation of the
National Party and he was aware that a Political Party called National Party has now been
registered but that he is not a member of the party and had no intentions of joining that
party ; at least not for the time being . He said he was seeking three reliefs in the form of
declarations:

(a) that the seat in the National Assembly has not become
vacant and that he is entitled to resume his seat and enjoy all the privileges and
immunities as a member of parliament;

241
 (b) that to deny him entry and access to the National
Assembly premises on the basis that he has resigned from the MMD is ultra vires Articles
21 and 23 of the Constitution of Zambia;

(c) that there should be no by elections in Mufulira

Constituency on the 12th October 1993 as to do that would lead to absurdity.

The second Respondent Dr John Mubanga Mulwila, was also seeking for a declaration
that his seat in the National Assembly has not become vacant; that to deny him entry and
access to the National Assembly on the basis that he had resigned from the MMD is ultra
vires Articles 21 and 23 of the Constitution of Zambia; and that there should be no by
election in Lukasha Constituency on the 12th October, 1993 as to do that would lead to
absurdity. He testified that he was elected as a member of parliament on the MMD ticket
for the Lukasha

p9

Constituency. He was present at the Press Conference at Pamodzi Hotel on 12th August,
1993 at which he announced his resignation from MMD. He said he also received a letter
from the Clerk of the National Assembly advising him to stay away from the National
Assembly since he had resigned from the MMD, his seat had become vacant. He was
also asked to propose how he hoped to settle his indebtedness to the National Assembly.
He said that he had tried to go to the National Assembly Motel but he was denied entry,
by the Security Officer who insisted that he should ask somebody to sign him in since he
was no longer a member. He said at the moment he did not belong to any political party
although that did not mean that he would not join any other political party. He denied
having signed the Declaration of Liberty which was read out at the Conference.

The 3rd respondent, Katongo Mulenga Maine brought her case by originating summons.
She sought the determination of the following questions:

1. whether under article 71(2)(c) of the Constitution of Zambia

the fact of resigning from MMD, on whose ticket she stood on election automatically
means she vacated her seat; or
2. whether the loss of such Parliament seat under article 71(2)(c)
only occurs if such member joins another party in addition to resignation from the party
under which she was elected; and
3. a declaration that the Parliamentary seat in Chinsali
Constituency is not vacant

She deposed in the court below that she did not attend the Press Conference at Pamodzi
Hotel on 12th August 1993. She said however, that she held a press conference at a later
date at which she announced that she had resigned from MMD and expressed
sympathetic terms for the National Party. She said she had not yet joined the National
Party although she is aware that the National Party has been registered. She told the

242
court that she also received letters from the Clerk of the National Assembly informing
her, like the other petitioners who had resigned from MMD, that she had vacated the seat
in the National Assembly and that she should indicate how she would settle her
indebtedness to the National Assembly. Under cross examination she said that as at 12th
August, 1993 she was one of the 11 Mps who had resigned from the MMD; that in his
statement Mr Kasonde was speaking on her behalf in some instances although she was
not present; that she had read the declaration of Liberty and that she associated herself
with part of the sentiments; that she had not become member of the National Party; and
that she was still ad MP for Chinsali Constituency.

The fourth respondent, Miss Chilufya Chileshe Kapwepwe, was seeking a declaration
that the purported declaration by the Speaker was a front to Article 72(1) (a) of the
Constitution of Zambia as it purported to and the powers vested in the High Court and
therefore nullity and initio; that the application of Article 71(2)(c) to her had contravened
her fundamental rights as enshrined in Articles 11, 19 to 23 of the Republican
Constitution and therefore null and void ab initio; that her seat in the National Assembly
has not become vacant and that she is entitled to resume her seat and enjoy all the
privileges and immunities as are ordinarily enjoyed by any member of Parliament. she
said she was also elected on MMD ticket to the National Assembly to represent Lunte
Constituency. She

p10

attended the Press Conference at Pamodzi Hotel on 12th August, 1993 where she
announced her resignation from MMD. She said she received a letter from the Clerk of
the National Assembly in which she was advised she was no longer a member of
Parliament since she had resigned from the MMD and requested to indicate how she
would settle here indebtedness to the National Assembly. She said she has heard of a
party called National Party but that she is not a member of the party. She said although
her name was on the list of Mps which was read out at the Press Conference on 12th
August, 1993 as those who had resigned from MMD she did not sign the document called
the Declaration of Liberty.

The first appellant filed an answer to some of the Petitions. It states that following the
resignations of the petitioners from other members from the MMD and a declaration to
form National Party the petitioners later formed and joined the said party and by virtue of
the said resignation and joining the new political party, the petitioners vacated their seats
in the National Assembly by virtue of the provisions contained in Article 71(2)(c) of the
Constitution of Zambia. In the alternative he contended that having regard to the
intention of the legislature and the context of the legislation generally, the purpose of the
National Assembly in enacting Article 71(2)(c) of the Constitution was to ensure that
Mps did not move from one party to another or leave parties to become independent
while retaining their seats in Parliament so that even assuming that they have not joined
the National Party by resigning from the MMD, the petitioners have vacated their seats in
Parliament pursuant to Article 71(2)(c) of the Constitution and that having vacated their

243
seats the petitioners had no right of entry to the National Assembly and as such they were
properly barred from entering the premises.

The respondent’s witness, Clement Zulu DW1, testified that he was Registrar of
Societies. He said that so far 25 political parties have been registered. He said an
application for the registration of the National Party was received on the 1st September
1993. In the application forms ten names of office bearers appeared, none of whom are
the respondents. Apart from the officer bearers it was indicated on the application forms
that the number of members was fifty. He said that when the application was being
lodged the first petitioner was there and the Party was finally registered on 10th
September, 1993 and certificate for registration No. ORS 133/35/1 was issued.
According to this witness at the time when the Clerk of the National Assembly wrote to
the Petitioners, the National Party did not exist.

The second witness, Mr Edward Mwanza, DW2, said he was Principal Engineer with the
Zambia National Broadcasting Corporation. He said that a team from the ZNBC
recorded the press conference on 12th August 1993. The team also prepared the film for
a programme entitled “Frank Talk” in which the first petitioner appeared as a guest and it
was aired on 15th August, 1993. He produced both tapes to form part of the evidence.
(Both tapes were played to the court at the Mass Media Complex). DW2 conceded that
the tape for the press conference did not appear to be complete, he said this could have
been caused by the microphone changing hands from the questioner to the person
answering. He also conceded that this could be as a result of editing.

p11

After hearing evidence from the parties the learned judge found that a National Party
which was referred to in the “Declaration of Liberty” and read out at a press conference
at Pamodzi Hotel on the 12th of August 1993 was the same party which was registered as
the National Party and that by their own declaration all the petitioners were going to form
and belong to this party. The judge further found that they were therefore caught by the
provisions of Article 71(2)(c) and that in terms of this Article they vacated their seats
when their party came into existence on 10th September, 1993.

On the interpretation of Article 71(2)(c) the learned judge held that if a member of
Parliament leaves the party on whose ticket he or she was elected into Parliament but
does not join any political party that person retains the seat as an independent.

In his Memorandum of Appeal, the learned Principal State Advocate submitted the
following grounds of appeal:

1. The learned trial judge erred in law in not holding that having
regard to the intention of the legislature and the context of the legislature generally, the
purpose of the National Assembly in enacting Article71(2)(c) of the Constitution of
Zambia was to ensure that members of Parliament do not move from the political party to
another or leave political parties to become independents while retaining their seats in

244
Parliament and accordingly the very fact the respondents had resigned from the
Movement for Multiparty Democracy(MMD) on whose ticket they stood and were
elected to the Parliament, they had automatically vacated their seats in Parliament.
2. In construing the provisions of Article 71(2)(c) of the
constitution of Zambia, the learned trial judge erred in law in applying the literal rule of
Statutory interpretation.
3. In construing the provisions of Article 71(2)(c) the learned
trial judge should have applied the purposive rule of Statutory interpretation.
4. The learned trial judge erred in Law in holding that in
enacting Article 71(2)(c) of the Constitution of Zambia, the intention of the legislature
was not to include a situation where a Member of Parliament shall vacate his or her seat
if he or she resigns from a political party on whose ticket he or she was elected to the
Assembly.
5. The learned trial judge should have held that in interpreting a
statute it is premissible to construe an enactment in such a way that it furthers the
purpose or object of the enactment and should have further held that in construing the
provisions of Article 71 (2) (c) of the Constitution of Zambia by applying the literal rule
of statutory interpretation its purpose will be defeated.
6. The learned trial judge should have held that to accept the
provisions of Article 71(2) (c) of the Constitution of Zambia on their face
value create a departure from the spirit of Article 71(2)(c) in that a member of that party
on whose ticket he or she won his seat or if he or she has elected an independent member,
he should continue to sit in parliament as an independent member.

p12

Mr Kinariwala then went on to argue these six grounds. He said while interpreting
Article 71(2)(c) the learned judge recognised the fact that the Mvunga Commission of
Inquiry recommended that the new Constitution should discourage the crossing of the
floor in parliament and this recommendation was accepted in a white paper by the
Government.

Following that Parliament amended Article 71 of the Constitution and replaced it with the
following:

“(2) A member of the National Assembly shall vacate his

seat in the Assembly-
(c) In the case of an elected member, if he becomes a
member of a political party other than the party, of which he was elected to the National
Assembly or, if having been an independent candidate he joins a political party.”

He argued that under Article 67 of the Constitution the Composition of the National
Assembly consists of 150 elected members; 8 nominated members, and the Speaker. He
said the elected members are those of the political parties or independent members.
Entry to the National Assembly is through political parties or independent members -
there is no other way. In a multiparty political era a member can only stand as a member

245
of a political party or as an independent. Once one has been elected Article 71(2)(c) of
the Constitution requires that he should pay allegiance to a party on whose ticket he was
he joins another political party and this applies to an independent if he joins a political
party. He said the only reasonable interpretation one can place an Article 71(2)(c) of the
Constitution is that if an MP resigns from one status he should lose his seat. The
principal is that one either remains an independent or one who was elected on a party
ticket, should maintain his status through and through. He said the intention of
parliament was absolutely clear. He urged the court to read the omission so that the
Article should read that “in the case of an elected member who resigns from a party on
whose ticket he was elected and does not join a political party he shall also vacate the
seat.”

He further argued that if the court does not interpret the article that way then it would be
discriminatory against an independent who changes his status by joining a political party
and the one who resigns and joins another party.

He said there was a distinction between the purpose or object of an enactment and the
legislative intention governing it. The distinction is that the former relates to the
mischief to which the enactment is directed and its remedy, while the latter to the legal
meaning of the enactment. In this case the intention was to entrench the loyalty of the
members.

Mr Mwansa, the legal counsel for the 2nd appellant, MMD, said that although he did not
file a notice of appeal he wished to be heard in the Supreme Court. He said the 2nd
appellant was appealing against that part of the Judgement of the lower court which reads
(at page 21) of the Judgement:

Based on the fact that the frames of the present constitution had the benefit of the 1964
constitution whose express provisions on the issue before the court, now were left out
from the present constitution, I am

13

not persuaded to find that the intention of the legislature was to include a situation where
a member of the Assembly just resigns from a political party on whose ticket he/she was
elected to the Assembly. Asking the court to read these words into Article 71(2)(c) is
asking the court to legislate by including that which was omitted. If anything the evident
intention expressed was to leave out what was provided in an earlier constitution. The
only solution therefore is for the respondent to seek a constitutional amendment if they
now wish to reinstate what was applicable in the first republic.”

Mr Mwansa vividly argued that the court was wrong to have restricted itself to the literal
interpretation since that would have produced an absurdity. He said the decision of the
court below, if allowed to stand, would discriminate against an independent who joins
party or member of parliament who resigns from a party on whose ticket he/she was

246
elected and joins another party and gives to those who opt not to join another party but
become independents the privileges that are denied to the other members. He said the
decision is therefore unconstitutional since some members would be discriminated
against on account of the political beliefs as provided by Article 23 of the Constitution.
He said such literal construction in this case has produced injustice. He referred the court
to the case of R vs KUNTAWALA (1) as quoted by W L Church, in AN
INTRODUCTION TO THE LAW OF ZAMBIA (2). He also referred to the case of
MUHAMMAD NAWAZ SHARTZ PRESIDENT OF PAKISTAN AND OTHERS THE
ALL PAKISTAN LEGAL DECISIONS (CONSTITUTIONAL) PETITION (3)

Mr Mwansa said the words to be interpreted in this case were to be found in article 71(2)
(c). Admittedly Article 71(2)(c) does not include a situation where one resigns from one
party and does not join another party. He said the court should look at the intention of
the legislature. The court should have used the Golden Rule to arrive at a justifiable
decision; the court should probe the spirit of the provision which is very clear. It was
intended to stop the crossing of the floor in the House. He said the function at
Parliament is to legislate and there is no obligation for parliament to look at what was
before. The court should therefore have looked at the spirit of the law. He said it can
never be the intention of parliament to legislate a discriminatory Act. It creates an
absurdity if it is discriminatory and the court is obliged to clear the absurdity and make
the law more meaningful. He concluded that there were enough grounds to justify the
interference that the legislature intended something which it omitted to express and that
the Shariz case already supported his detention.

Submitting on behalf of the four respondents the learned advocate Mr Shamwana, SC.,
left no stone unturned. He argued with all the ingenuity imbued in him that the learned
trial judge was right to hold that a member of parliament who resigns and does not join
another party remains a member of parliament and that this is so because the words of the
Statute are very clear. He said Article 71(2)(c) is quite clear, it states:

“In case of an elected member, if he becomes a member of political party, other than the
party of which he was an authorised candidate when he was elected to the National
Assembly or, if having been an independent candidate, joins a political party.”

p14

He said the court was invited by Mr Kinariwala to believe that if Article 71(2)(c) was
interpreted or understood as it is written there would be an absurdity. In all respect there
is no absurdity at all. Parliament makes no mistakes. It made its intention clearly known
and there was no absurdity. The mischief that was intended to be cured was that no one
should join another party. The words are quite clear and there is no ambiguity.
Referring to Odgers on construction of statutes, at page 62, he said there is nothing harsh,
unfair or ambiguous in this particular case. The manifest intention was not to join
another party and that was the real objection. The concept of an independent is not new.
Referring to N Wilding and P Launchy, ENCYCLOPAEDIA OF PARLIAMENT 4th
Edition he described a Member of Parliament as follows:

247
“A member of Parliament is described as Independent if he acknowledges no allegiance
to any political party, whether he/she has obtained his seat without the aid of any party
organisation or whether he/she leave his party to become independent after he/she has
been elected-------”

It is not true to say that there would be a problem for the independent member to find a
seat where to position himself. He said the intention of Parliament was not to penalise
changing of status but to penalise joining another party. The duty of the court is to
interpret the law and not to make it. Both the golden and literal rules agree unless there
is ambiguity. In the instant case there is no ambiguity. Where is the ambiguity in Article
71(2)(c) of the Constitution “if a member leaves the party on whose ticket he was elected
and joins another ‘party.” It is clear from the words used that Parliament allowed limited
crossing of the floor.

He argued that “purposive rule” of interpretation can only be resorted to where the words
are ambiguous. If in the unlikely event the court thinks there is ambiguity in Article the
effect is that such doubt should be resolved in favour of his clients. He said there is no
excuse for the court to shy away from the only and true interpretation. There is no
discrimination against an independent because he was an individualist. He concluded
that the society has been given a constitution which has allowed limited floor crossing.
There was no prohibition in Sharif’s case because it merely states that it was desirable.

Mr Shamwana further argued that article 71(2)(c) allows limited crossing. Whether or
not our constitution allows this limited floor crossing is the issue which will be resolved
later in this judgement.

In reply, Mr Kinariwala said it was not their intention to contend that the words were
ambiguous but that there was an absurdity which is discriminatory against an
independent. Indeed the Act is silent about a member of Parliament who resigns from a
party on whose ticket he was elected and does not join another party. He refers the
court to the booklet “The Discipline of Law” 1979 Edition, at p. 12. He read a passage in
that Book of what Lord Denning said in Seaford Court Estate Led v Asher (4).

“Whenever a statute comes up for consideration it must be remembered that it is not

within human powers to foresee the manifold sets of facts which may arise, and, even, if
it were, it is not possible to provide for them in terms free from all ambiguity. The
English Language is not an

p15

instrument of mathematical precision. Our literature would be much the poorer if it were.
This is where the draftsman of Acts or parliament have often been unfairly criticised. A
judge, believing himself to be fettered by the supposed rule that he must look to the
language and nothing else, laments that the draftsman have not provided for this or that,

248
or have been guilty of some other ambiguity. It would certainly save the judges trouble if
Acts of parliament were drafted with divine prescience and perfect clarity. In the absence
of it, when a defect appears, a judge can not simply fold his hands and blame the
draftsman. He must set to work on the constructive task of finding the intention of
parliament, and he must do this not only from the language of the statute but also from
the consideration of the social conditions which gave rise to it, and the mischief which it
was passed to remedy, and then he must supplement the written word so as to given
‘force and life’ to the intention of the legislature. That was clearly laid down by the
resolution of the judges in HEYDONS CASE and it is the safest guide today. Good
practical advice on the subject was given about the same time by plowden---- put into
homely metaphor it is this: A judge should ask himself the question: If the makers of the
Act had themselves come across this ruck in the texture then do as they would have done.
A judge must not alter the material of which it is woven, but he can and should iron out
the creases.”

Mr Kinariwala went on to say that in Kammisi v Zenith Investments Ltd (5) Lord
Diplock drew a clear distinction between the literal approach’ and the purposive
approach', to solve the question.

He further referred to the case of Nothman v Barnett Council (6). In this case men and
women teachers were entitled, under their contracts, to continue in employment until the
age of 65. A lady of 61 was dismissed. she claimed compensation for unfair dismissal.
The Employment Appeal Tribunal held that, if she had been a man, she would have been
entitled: but as she was a woman she was not. They regretted it. They said they were
bound by the literal meaning of the words. Lord Denning summarised their view point
and commented:

"The Employment Appeal Tribunal realised this was most

unjust, but felt could do nothing about it. I will give their words:

"The instant case provides as glaring an example of

discrimination against a woman on grounds of her sex as there could possibly be. The
facts of this case point to a startling anomaly".Yet they thought the judged had their
hands tied by the words of the statute. They said;

"Clearly someone has duty to do something about this absurd

and unjust situation. It may well be however, that there is nothing we can do about it.
We are bound to apply provisions of an Act of parliament however absurd, out of date
and unfair they may appear to be. The duty of making or altering the law is the function
of parliament and is not as many mistaken persons seem to imagine, the privileges of the
judges or the judicial tribunal.”

p16

Lord Denning continued:

249
 I have read that passage at large because I wish to repudiate
it. It sounds like a voice from the past. I heard many such words 25 years ago. It is the
voice of the strict constructionist. It is the voice of those who go by the letter. It is the
voice of those who adopt the strict literal and grammatical construction of the words,
heedless of the consequences. Faced with glaring injustice, the judges are, it is said
impotent, incapable and sterile. Not so with us in this court. The literal method is now
completely out of date. It has been replaced by the approach which Lord Diplock
described as the “purposive approach.'' In all cases now the interpretation of statutes we
adopt such a construction as will “promote the general legislative purpose” underlying
the provision. It is no longer necessary for the judges to wring their hands and say:
“There is nothing we can do about it.”
Whenever strict interpretation of a statute gives rise to an
absurdity and unjust situation, the judges can and should use their good sense to remedy
it - by reading words in, if necessary - so as to do what parliament would have done, had
they had the situation in mind.”

In Stock v Frank Tomes Tipton Ltd (7) Viscount Dilhone said:

“It is now fashionable to talk of purposive construction of a

statute, but it has been recognised since the 17th century that it is the task of the judiciary
in interpreting an Act to seek to interpret it, 'According to the intent of them that made it'
(Coke 4 lust 330)”.

Mr Kinariwala then urged the court to interpret the article in the way it was intended.

Mr Mwansa, the advocate for the 2nd appellant, in his reply, also urged the court not only
to look at the literal interpretation but the intention of parliament. He said the article
itself was silent on the position of the respondents in this case. It is that silence which
creates the absurdity which the court can resolve. It can not be said that simply because
the article is silent then it gives them a right to be in parliament. Since there is silence it
is the duty of the court to look beyond the literal meaning. He said there are two
situations which the law has stipulated (a) where there in unfairness and (b) what is the
spirit or intention of parliament for the court to look beyond the literal interpretation. The
spirit or situation was change of status.

After the submissions on the main appeal Mr Shamwana argued the cross-appeal. He
summarised thus:

(a) The court was wrong to hold that the respondents/appellants

joined the party by attending a meeting without any evidence;
(b) The decision of the court below was perverse in that the court
looked at the facts and interpreted them and when interpreted one would hold that they
did not join any party.
(c) The fourth respondent/appellant did not attend the meeting.

p17

250
Dealing with (a) Mr Shamwana said that the evidence is in fact quite specific. The
respondents/appellants were asked whether they had joined any party. One said he had
not joined any party and some said perhaps in future they may join a national party. The
fourth appellant said a national party should embrace all the tribes of Zambia otherwise
she should not join. Therefore the trial judge’s interpretation and conclusions that they
became members of the national party on the authority of the Attorney General v Marcus
Kachiume (8) and DPP v Ngandu and Others (9). Was not supported by evidence on
record. He said it is quite clear the judge drew wrong conclusions from the facts of the
case. She found as a fact that a “National Party” which was referred to in the Declaration
of Liberty at the Press Conference and in the Frank Talk programme is the same party
which was registered as the National Party. Both the first and fourth petitioners gave
uncontroverted evidence that the party that was referred to in the Declaration of Liberty
and at the press Conference was not the National Party that was registered on 10th
September 1993.

On the question of signing the Declaration of Liberty the learned State Council submitted
that there was no evidence that the respondents/appellants had signed it. He said
according to the evidence of the first petitioner who read at the Press Conference.
nobody signed the declaration of liberty and that he and E.G. Kasonde were not
authorised spokesman of the petitioners and the people who resigned at the Press
Conference. He said the evidence was not controverted. Nor is there any finding by the
trial judge that either the first or third petitioners jointly or severally was or were not to
be believed. Thus the learned judge should not have linked all the petitioners’ names to
the Declaration and to the National Party if she took a well balanced view of the whole of
the evidence. Failure to do that was serious misdirection.

He said the learned trial judge upheld the Declaration by the Speaker that the
petitioners’ seats in the National Assembly had become vacant without appreciating that
the Speaker or his agents declared the seats vacant upon receipt of a letter from the
National Secretary of the MMD that the petitioners had resigned from the party not that
they had joined any other political party.

As to the existence of the National Party the State witness called, Clement Zulu, said that
he received the application on 10th September, 1993. He said the Party did not exist until
that date. There is no evidence that the respondents /appellants at any time applied to be
members. the judge concluded that the respondents/appellants joined by attending a
Press Conference. The primary reason for the meeting was to announce their resignations
from the MMD. The society is formed from the date of registration. The National Party
started its life on the 1st September 1993.

The trial judge misdirected herself by construing the intentions to join a party that was
going to be formed as an act of joining that party. Intention alone is not sufficient.

In reply to the submission of Mr Shamwana in the cross appeal the learned principal state
advocate Mr Kinariwala argued that, although all the respondents /appellants had denied,

251
there was evidence in form of video tape which showed that the National Party was
formed on the date of the Press Conference by implication. He said under section 9(c) of
the Societies Act a party can exist from time of declaration. The inference made by the
judge that the respondents joined the National Party was based on evidence, the question
is when was the party

p18

formed? He contended the National Party was formed at the Press Conference by
declaration that the National Party was formed. To suggest that video tapes were not
authentic was wrong. Mr Mwanza explained how the press conference and Frank Talk
programmes were recorded. He said what was in the tape is what transpired and there
was nothing added or subtracted. The evidence was to the effect that the National
Secretary to MMD wrote to the Speaker that the respondents/appellants had resigned
from the ruling MMD and upon the receipt of that letter the speaker made a declaration
that seats in those constituencies had become vacant. The procedure is laid down in
sections 7 and 8 of the Electoral act No. 2 of 1991. It is the Speaker who has to make a
decision and a declaration. Counsel for Miss Kapwepwe contended that it was the duty
of the High Court to declare the seats vacant. This was rejected because the High Court
only comes in when there is a dispute. It is incorrect to contend that the learned trial
judge failed to consider all the issues raised in the petitions.

In responding to the cross appeal, Mr Mwansa, Advocate for the second

appellant/respondent said the judge did not err in the judgement. The court concluded
from the evidence on record before it that the petitioners had joined the National Party.
The court considered the petitioners denials that they signed the declaration of liberty but
despite their denials the Court was satisfied that the petitioners had signed. The intention
to form the Party was made on 12th August, 1993 at Pamodzi Hotel and that intention
was put into effect by the application on 10th September 1993. The people who gathered
at Pamodzi Hotel were the same people who formed the National Party. The inference by
the court below that these were members of the National Party is very strong inference
which could not be easily overturned by this court. The letter from the National
Secretary did not ask the Speaker to declare the seats vacant but rather gave information
to the effect that the petitioners had resigned from the MMD. It remained for the Speaker
to make a decision.

In reply, the learned Counsel, Mr Shamwana,S.C., emphasised that there was no evidence
that any of the petitioners had joined any party. The video tape was vehemently objected
to and the finding of the judge were “flies in the eyes of the established law”. The judge
was therefore wrong. The contents of the video tape if disregarded then what remain is
that they “resigned to join a National Party” in small letters and not “National Party” in
Capital letters.

We have very carefully considered and analysed the evidence on record; the documents
produced; the authorities cited; and the submissions and arguments presented by all the
parties and we have come to the conclusion that the main issue in the main appeal

252
concerns the interpretation of article 71(2)(c) of the Republican Constitution. This article
reads:

“2. A member of the National Assembly shall vacate his seat in

the Assembly.
(c). in the case of an elected member who becomes a
member of a political party other than the party of which he was an authorised candidate;
if he is an independent, joins a political party.”

It is quite clear that the Article provided two types of situations (a) a member

p19

who resigns from a party on whose ticket he was elected and joins another political party
and (b) an independent who joins a political party. These are members who have to
automatically vacate their seats. the article is in total silence as to what happens to a
member “who resigns from the party that sponsored his candidature and does not join
another party”. That situation is not expressly covered. There can be no doubt there is a
lacuna or a void in this article. The learned trial judge applied the literal construction
that is that a statute must be construed in the ordinary and natural meaning of the words
used. She quoted the case of Barrel (Pauper) v Fordree (9) where Lord Warrington of
Cliyffe said:

“----------in my opinion the safer and more correct course of

dealing with a question of construction is to take the words themselves and arrive if
possible at their meaning without, in the first instance, reference to cases.”

She then referred to Maxwell on interpretation of Statutes by P. ST. LANGAN,

MAXWELL ON INTERPRETATION OF STATUTES 12th Edition, page 33 where the
learned author said:

“it is a corollary to the general rule of literal construction that

nothing to be added to or taken from a statute unless there are adequate grounds to justify
the inference that the legislative intended something which it omitted to express.”

She also quoted in furtherance of this principle the case of SHOP AND STORE
DEVELOPMENT LIMITED AND COMMISSIONER OF INLAND REVENUE (1967)
1 Appeal cases 472 at 493 where Lord Morris of Borth v Gest said:

“My Lords, the decision in this case calls for a full and fair
application of particular statutory language to particular facts as found. The desirability
or undesirability of one conclusion as compared with another can not furnish a guide
reaching a decision. The result reached must be that which is directed by that which is
enacted.”

253
The learned Advocates for the appellant argued and argued with much force that to
apply the literal rule of interpretation would depart from the spirit or context of the
Constitution which is that a member of Parliament must sit in the Assembly as a member
of a Party on whose ticket he was elected or if he is an independent he must continue as
an independent, in other words, the article prohibits crossing of the floor. They asked the
court to apply purposive interpretation in order to further the purpose or object of the
enactment.

They pointed out that English courts have recently adopted this purposive construction
where the literal interpretation of the legislative language used would lead to results
which would defeat the purpose of the act but before this is done, the court must first
determine the mischief which the enactment intended to remedy. It must also be apparent
that the draftsman and parliament have by inadvertence overlooked, and committed to
deal with an eventuality and that additional words would have been inserted by the
draftsman and approved by parliament had their attention been drawn to the omission.
The respondents referred the judge to Act 30 of 1993, an amendment to the Local
Government 1991

p20

which stipulates inter alia that a Counsellor would vacate his seat if he resigns from a
political party to become an independent. According to them, when a member of
parliament resigns or he is expelled from the party without belonging to any other party,
his changed party loyalty is the determining factor as to whether or not retains his seat,
and thus the petitioners accordingly vacated their seats in the National Assembly.

In adhering to the literal rule of construction the learned judge considered the above
authorities cited; the recommendation of the Mvunga report on floor crossing and its
acceptance by the Government. She then asked herself this question: “What grounds
could there be in this case to depart from the language used in the enactment and
conclude that the legislature intended something which it omitted to express? The
strongest ground advanced by the respondents is that any other interpretation would
defeat the intention of the legislature which was to stop crossing of the floor.” She then
referred to the recent case of Muhammad Nawaz Sarif v President Of Pakistan (3)
where it was held:

“------ in the constitution contained in a written document wherein the powers and duties
of various agencies established by it were formulated with precision, it was the wording
of the constitution itself that was enforced and applied and this wording could never be
overridden or supplemented by extraneous principles or non specified enabling powers
not explicitly incorporated in the constitution itself.”

The learned trial judge then went on to say:

“Based on the fact the framers of the present constitution had the benefit of 1964
constitution whose express provisions on the issue before the court now were left out

254
from the present Constitution, I am not persuaded to find that the intention of the
legislature was to include a situation where a member of the Assembly just resigns from a
political party on whose ticket he/she was elected to the Assembly. Asking the Court to
read these words into Article 71(2) (c) is asking the court to directly legislate by
including that which was omitted. If anything the evident intention expressed was to
leave out what was provided in an earlier Constitution. The only solution, therfore, iis for
the respondent to seek a Constitutional amendment if they now wish to reinstate what
was applicable in the first Republic.”

In considering the law relating to this appeal we have referred to learned author of
Maxwell on interpretation and Statutes who, at p. 43, had this to say on the Golden rule:-

“The so called ‘Golden rule’ is really a modification of the literal rule. It is stated in this
way by Parke B:

“It is a very useful rule in the construction of a statute, to adhere to the ordinary meaning
of the words used, and to the grammatical construction, unless that is at variance with the
intention of the legislature, to be collected from the statute itself, or leads to any manifest
absurdity or repugnance, in which case the language used may be varied or

p21

modified, so as to avoid such inconvenience but no further.” Becke v Smith (1836) 2M

and W. 191 (10) “if” said Breth L.J. “the inconvenience is not only great, but what I may
call an absurd inconvenience by reading an enactment in its ordinary sense whereas if
you read it in a manner in which it is capable, though not its ordinary sense there would
not be any inconvenience at all, there would be reason why you should not read it
according to its ordinary grammatical meaning” R v Tonbridge Overseers (1884) (11).

And Craies on Statute Law at p. 64 has this to say:

“The Cardinal rule for the construction of Acts of parliament is that they should be
construed according to the intention expressed in the acts themselves. If the words of the
statute are themselves precise and unambiguous, then no more can be necessary than to
expand those words in their ordinary and natural sense. The words themselves alone also
in such case best declare the intention of the Law giver. “The tribunal that has to
construe an act of legislature or indeed any other document, has to determine the
intention as expressed by the words used. And in order to understand these words it is
natural to inquire what is the subject matter with respect to which they are used and the
object in view”. In 1953 Lord Goddard said in Bernes v Jarvis (12) “A certain amount
of common sense must be applied in construing of statutes. The object of the Act must
be considered.”

Against these authorities is that referred to by Mr Kinariwala namely Nothman v Barnett

Council (6) affirmed by the House of Lords in 1979 1 All E.R 142. Lord Dennings
words are most appropriate in this case namely:

255
“Whenever a strict interpretation of a statute gives rise to an absurdity and unjust
situation, the judges can and should use their good sense to remedy it - by reading words
in if necessary - so as to do what parliament would have done had they had the situation
in mind.”

It is perfectly clear on the face of it the article is intended to prohibit floor crossing
generally. In the event the wording of it does not clearly carry out that intention if we
were to follow the construction contended for by Mr Shamwana, the result would be
discriminatory in favour of Party members who become independent.

Both Maxwell and Craies on statutes said only where there is absurdity or repugnance
can the court come in to modify the language used in the statute. We are, therefore,
satisfied that Article 71(2) (c) is discriminatory in itself against an independent member
who joins any party and against a member who resigns from one party and joins another
party. It is discriminatory and, therefore, unreasonable and unfair and it is the duty of the
court to make it reasonable as it offends against Article 23 of the Republican
Constitution.

In the instant case, we have studied the judgement of the court below and we find it
sound and correct by applying the literal interpretation. However, it is clear from the
Shartz and Nothman cases that the present trend is to move

p22

away from the rule of literal interpretation to ‘purposive approach’ in order to promote
the general legislative purpose underlying the provision. Had the learned trial judge
adopted the purposive approach she would undoubtedly have come to a different
conclusion. It follows, therefore, that whenever the strict interpretation of a statute gives
rise to unreasonable and an unjust situation, it is our view that judges can and should use
their good common sense to remedy it - that it by reading words in if necessary - so as to
do what parliament would have done had they had the situation in mind. We, therefore,
propose to remedy the situation in this case by reading in the necessary words so as to
make the constitutional provision fair and undiscriminatory. Consequently the necessary
words to be read in are “vice versa” Hence Article 71(2)(c) should now read (leaving out
those sub clauses of no application):

71 (2) A member of the National Assembly shall vacate his seat

in the Assembly:

(c) in the case of an elected member, if he becomes a member

of a political party other than the party, of which he was an authorised candidate when
he was elected to the National Assembly or, if having been an independent candidate, he
joins a political party or vice versa;”

256
For the foregoing reasons we would allow the appeal by the appellants.

As regards to the cross appeal, we are satisfied that the Video Tapes evidence was
wrongly admitted as there was no link in the chain of possession and there was no
evidence that the respondents had joined any other political party. The only evidence on
record is that there was an intention of forming a National Party. For these reasons, we
would also allow the cross appeal.

The effect of our interpretation of Article 71(2) (c) is that the respondents in the main
appeal who were petitioners in the Court below had vacated their seats in the National
Assembly on 12th of August 1993, the date on which they announced their resignation
from the MMD, the party on whose tickets they were elected to the National Assembly.

We order each party to bear its own costs.

Appeal allowed.

257
THE ATTORNEY GENERAL AND THE LABOUR COMMISSIONER v FABIAN
ZULU AMEDEUS C KAMUKWAMBA SITENGE MUNDIA MUTANGWA &
OTHERS (1995) S.J.

SUPREME COURT
GARDNER, CHAILA, AND MUZYAMBA JJS
14TH FEBRUARY, 1995 AND 30TH NOVEMBER 1995
S.C.Z. JUDGEMENT NO. 26 OF 1995

Flynote

Trade union - Registration as union - Secondary School Teachers Union.

Headnote

Respondents, as plaintiffs in court below, applied for registration of a union. Labour

Commissioner rejected the application on grounds that the Zambia National Union of
Teachers existed and represented secondary school teachers. Respondents applied to the
High Court for a declaration that their constitutional rights had been infringed. The
Commissioner ruled in favour of the respondents. The Attorney-General appealed,
advancing four grounds of appeal.

Held:

(i) Section 9(8)(c) of the Industrial and Labour Relations Act 27 of 1993 is not
ultra vires the Constitution and allows for the registration of a separate union
for secondary school teachers.

(ii) (CHAILA, J.S. dissenting) The proposed Secondary School Teachers Union of
Zambia comprised a specific category, different from other teachers who are
qualified to form a trade union within the terms of section 9(8)(c) of the
Industrial and Labour Relations Act, and that its members are not adequately
represented by any other union.

Cases referred to:

(1) The Attorney General & Anor v Lewanika & Others S.C.Z.
Judgement No. 2 of 1994

258
For the appellant: Mr A.G. Kinariwala, Principal State Advocate
For the respondent: Mr R.Simeza of Simeza Sangwa Associates
___________________________________________
Judgment

CHAILA, J.S.: delivered the judgement of the court.

The respondents hereinafter referred to as the plaintiffs in the court below, applied on
behalf of the secondary school teachers to the Labour Commissioner to have their Union
called Secondary School Teachers Union to be registered as a Union. The Labour
Commissioner rejected their application on the basis that Secondary School Teachers
were represented by Zambia National Union of Teachers. The plaintiffs petitioned the
High Court for a declaration that their constitutional rights had been infringed by the
denial to have their union registered. The learned High Court Commissioner considered
the petition and declared that the Labour Commissioner’s refusal constituted a denial of
the plaintiffs enjoyment of their constitutional rights. The High Court Commissioner
further ruled that the provisions of section 9(8) (c) of the Industrial and Labour Relations
Act No. 27 of 1993 were inconsistent with the provisions of the Constitution of Zambia
and that they invalid.

The Attorney General being dissatisfied with the High Court Commissioner’s decision
appealed to the Supreme Court. The Attorney General filed four grounds which we shall
consider as they were argued. The first ground is that the learned trial commissioner
erred in holding:

(a) That section 9(8) (c) of the Industrial and Labour Relation
Act No. 27 of 1993 can only be justified if it shown that it was promulgated for the sole
purpose of regulating the registration procedures of political parties and trade unions;

(b) That section 9(8) (c) however goes beyond this at it outrightly
bars employees in industries were there is already a union in existence from forming new
trade unions;

(c) that such powers are therefore outside the purview of Article
21 (2) (d) of the Constitution of Zambia Act No. 1 of 1991; and

(d) that section 9(8) (c) is to that extent therefore in conflict with
constitution and invalid.

The second ground is that the learned trial Commissioner erred in law in holding that the
refusal by the second appellant to register the respondent’s union on the grounds that the
teaching profession was already represented by the Zambia National Union of Teachers
was a denial of the petitioners’ fundamental right and freedom of Assembly and
association as enshrined in Article 11 (b) and 21 (1) of the Constitution of Zambia (Act
No. 1 of 1991)

259
The third ground is as follows: that in coming to conclusions to which he did, the learned
trial commissioner fell in grave error by failing to address his mind to the exception
contained in Article 21 (2)(4) of the Constitution of Zambia (Act No.1 of 1991). The
fourth ground of that the judgement of the learned trial Commissioner is against law and
weight of the evidence on record.

Mr Kinariwala argued grounds one and two together. He submitted on grounds one and
two that section 9(8) (c) of the industrial and Labour Relations Act provides: “Nobody
registering as a trade union shall be registered if it purports to represent a class or classes
of employees already registered by an existing trade union or are eligible for membership
of an existing trade union unless the union intended to be registered represents a specific
trade or profession or category or eligible employees who are qualified to form a trade
union.” He submitted that the intention of legislature behind Section 9(8) (c) of the Act
is not to allow more than one trade union in an industry unless the second trade union is
intended to represent a specific trade or profession or category or employees who are
qualified to form a trade union.

He further submitted that the evidence adduced in the court below clearly demonstrated
that the secondary school Teachers Union of Zambia which purported to represent the
Secondary Schools Teachers was already represented by the existing National Union of
Teachers. Alternatively the Secondary School Teachers which the Secondary School
Teachers Union of Zambia purported to represent were eligible for membership of the
existing National Union of Teachers. Mr Kinariwala further submitted that the question
which now arises for consideration is whether the Secondary School Teachers who were
already represented by the existing National Union of Teachers could be regarded as a
specific trade or profession or category of employees who were qualified to form a trade
union.

It is submitted that the answer is no because the Secondary School Teachers could not be
regarded as a specific trade or profession or category of employees as all teachers
whether they teach in primary schools or in secondary schools belong to the same
profession namely school teaching profession. He further submitted that since the
secondary teachers could not be regarded as a specific trade or profession or category of
employees who were qualified to form a trade union, the Secondary Teachers Union of
Zambia was not eligible to be registered as a second union the teaching industry where
there was already in existence another trade union.

Mr Simeza counsel for the respondents on grounds one and two has argued that the
learned trial commissioner was correct in his construction of section 9(80(c) of the
Industrial and Labour Relations Act, No. 27 of 1993. He referred the court to Article
21(c) of the Constitution. He has argued that this Article is in conflict with section 9(e)
of the Industrial and Labour Relations Act. He has agreed in total with the conclusion
reached by the learned trial commissioner on the protection given to members in
registering the association. He has further argued that the Secondary School Teachers are
a different category as other teachers and as such they should be separately represented

260
and has argued the court dismiss the appeal and allow Secondary School Teachers to
register their union.

Our attention has been drawn by both counsel to various provisions in the Constitution of
Zambia. Mr Kinariwala in his submission has drawn our attention to Article 21 (1) (2)
(d) of the Constitution which reads:

(1) “Except with his own consent, no person shall be hindered in

the enjoyment of his freedom of assembly and association, that is to say, his right to
assemble freely and associate with other persons and in particular to form or belong to
any political party, trade union or other association for the protection of his interests.
(2) Nothing contained in or done under the authority of any law
shall be held to be inconsistent with or in contravention of this Article to the extent that it
is shown that the law in question makes provision -

(d) For the registration of political parties or trade union in a

register established by or under a law and for imposing reasonable conditions relating to
the procedure for the entry on such a register including conditions as to the minimum
number of persons necessary to constitute a trade union qualified for registration;

Mr Kinariwala has argued that Article 21 of the constitution has made a provision for a
law under which such political or trade union is registered may make reasonable
condition on the procedure of its registration. Mr Simeza has argued that the Article in
the Constitution refers only to the procedure and any regulation on the procedure has
nothing to do with the substantive issues covered by the legislation.

In his judgement the learned trial commissioner interpreted Article 21(2 (d) as follows:
“In my view, this Article is clear and unambiguous it means that section 9(8) (c) can only
be justified if it is shown that it was promulgated for the sole purpose of regulating the
registration procedures of political parties and trade unions. Section 9(8) (c) however
goes beyond this as it outrightly bars employees in industries where there is already a
union in existence from forming new trade unions. Such powers are therefore outside the
purview of Article 21(2)(c). To this extent therefore, I also hold that Section 9(8) (c) is in
conflict with Constitution.”

I have considered the arguments of both counsel as regards the interpretation of Article
21(2) (d) and the learned commissioner’s interpretation of the Article. The Article
provides in Clause 2 “nothing contained in or done under the authority of any law shall
be held to be inconsistent with or contravention of this Article to the extent that it is
shown that the law in question makes provision (d) for the registration of political parties
or trade unions in a register established by or under a law. The sub clause further
provides for reasonable conditions relating to the procedure for entry on such a register
including as to the minimum number of persons necessary to constitute a trade union
qualified for registration. The interpretation placed on this Article by the learned
Commissioner is that it permits only regulations to govern the procedure for registration.
The sub clause 2 however talks of making provisions for the registration of political

261
parties or trade unions. Section 9(8) (c) is a repetition of what was contained in the
Statutory Instrument No. 67 of 1991. Section 9(8) (c) of the Industrial and Labour
Relations Act reads:

“Nobody registering as a trade union shall register it purports

to represent a class or classes of employees already represented by an existing trade union
or are eligible for membership of an existing trade union unless the union intended to be
registered represents a specific trade or profession or category or eligible employees who
are qualified to form a trade union.”

This law has in my view made a provision for registration of trade unions. Section 9(8)
(c) of the Industrial and Labour Relations Act of 1993 is not in any way in conflict with
Article 21 (2) (c) of the Constitution. The section is not ultra vires Article 21 of the
Constitution. The learned trial commissioner erred in construing section 9(8) (c) of the
Industrial and Labour Relations Act of 1993 as being in conflict with Article 21 of the
Constitution. I fully agree with the argument by the appellants that the section is not in
conflict with the provisions of the Constitution.

I now come to the question of secondary school teachers. Mr Kinariwala has argued that
the secondary school teachers are already represented by the existing National Union of
Teachers; that evidence adduced in the lower court clearly demonstrated that the
secondary school teachers were already represented by an existing National Union of
Teachers. He further submitted that the secondary school teachers were eligible for
membership of the existing National Union of Teachers. He further argued that the
secondary school teachers could not be regarded as a specific trade or profession or
category of employees, as all the teachers teaching in primary schools or secondary
schools belong to the same class of teaching profession.

Mr Simeza has argued that secondary school teachers form a different class and that they
are separate teachers and that they should be separately represented.

There is no dispute that the teachers both at primary and secondary school levels have
been represented since 1962 by the National Union of Teachers. There is further no
dispute that membership to this union is open to both primary and secondary school
teachers. The petitioners admitted in the lower court that they were being represented by
National Union of Teachers but not properly represented and that they were free to join
the National Union of Teachers.

There is no dispute that the National Union of Teachers has been representing the
Teachers since 1962 and that membership is open to two classes of teachers. There is no
dispute that both classes of teachers belong to one profession I.e teaching profession.
The teaching profession of primary and secondary schools in this country is covered by
Chapter 234 of the laws of Zambia. The Act provides for both government aided and
private schools. The Act does not apply to the University of Zambia. The Government
of the Republic of Zambia is the main employer of the teaching profession both in
primary and secondary schools. In addition to the Education Act there is the Teaching

262
Service Commission created under the Constitution of Zambia. The Teaching Service
Commission deals with the appointments and conditions of service of the teachers
employed in the government service. The Zambia Union of Teachers has been
recognised to represent the interests of teachers mainly in the government service.
Section 9(8) (c) of the Industrial and Labour Relations Act of 1993 already referred to
provides:

“Nobody registering as a trade union shall be registered if it

purports to represent a class or classes of employees already represented by an existing
trade union or are eligible for membership of an existing trade union unless the union
intended to be registered represents a specific trade or profession of category or eligible
employees who are qualified to form a trade union”.

The proven facts are that both the primary and secondary school teachers belong to the
same teaching profession; that they are governed by the same legislation; that they have
one employer i.e. GRZ and that some teach in the same schools e.g Basic schools (Grade
1 to 9) . There is a great community of interest between the two classes of the profession.
I now come to the section itself. Section 9(8) (c) is very clear. The section provides that
nobody shall be allowed to register as a trade union if it purports to represent a class or
classes of employees already represented by an existing trade union or are eligible for
membership of an existing trade union or are eligible for membership of an existing
union unless....” The words of the section are clear and unambiguous. Upon literal
construction of the section nobody shall be registered as a union where there is one which
represents the workers unless the workers come under the exceptions provided by the
section. Upon careful perusal of section 9(8) (c) the clear intention of the section comes
out. Whether or not one uses literal interpretation or purposive interpretation the
intention is clear. The intention is to avoid proliferation of trade unions. The Act does
not encourage mushrooming of the trade unions unless of proving that they are a specific
profession. To me the burden of proving that they are different from the existing union
lies on the people applying for a new union. The applicants in my view must show
special and compelling reasons why they should form a different union. In this particular
case, both groups of teachers belong to the same teaching profession.

This court was recently faced with the construction of the Constitution of Zambia in the
case of Attorney General v Lewanika & Others (1). We said in this case:

“It follows, therefore, that whenever the strict construction

given rise to an unreasonable and an unjust situation, it is our view that judges can and
should use their common sense to remedy it - that is by reading words in it necessary - so
as to do what Parliament would have done had they had the situation in mind .”

In this case in order to avoid absurdity and unjust situation, the court read in some
missing words. In the instant case there is no question of implying any meaning or
adding any words. The strict and literal interpretation simply means nobody can register
as a union if there is one in existence or category of employees. The intention of the
legislature is generally to restrict mushrooming of unions. I do not see any unreasonable

263
situation arising in applying strict interpretation of the section. The section permits to
register another union if they satisfy conditions laid down by the section. In the present
case, there is a union in existence; both groups of teachers are eligible to become
members. The respondent's complaint is that they are not adequately represented. The
evidence in the court below showed that secondary school teachers were eligible for
membership of the existing trade union I.e Zambia National Union of Teachers. I take
judicial notice of the existing structure in the field of education. There is in existence
Basic schools which run from Grade 1 upto Grade 9. Grades 8 and 9 are junior
secondary schools. The teaching staff at these schools covers all grades from grade 1 to
grade 9. I take further judicial notice that the government is the sole employer of the
teachers for the primary, basic and secondary schools. If two unions came into existence
the government will be faced, when negotiating conditions of service for schools with
two unions. The two unions will be negotiating with the government for conditions of
their teachers covering the same schools. In my view this was not intended by the
legislation. I do not think that the teachers in the secondary schools are a different class
from the teachers in primary and basic schools. I am unable to agree with Mr Simeza’s
argument or contention that secondary school teachers belong to a different class. The
two groups of teachers belong to one teaching profession and that there is an existing a
union to which both groups or classes are eligible for membership.

For the foregoing reasons I would allow this appeal.

GARDNER, A.J.S.: I have had the advantage of reading the judgement of my learned
brother Chaila and I respectfully concur with that part of his judgement which finds that
S.9 (8) (c) of the Industrial and Labour Relations Act is not ultra vires Article 21 of the
Constitution. I regret however, that I dissent from the learned judge’s finding that the
said section does not allow the registration of a separate union for secondary school
teachers.

With regard to the question of whether or not section 9(8) (c) of the Industrial and Labour
Relations Act is ultra vires the Constitution, I should like to comment that Article 21 (2)
(c) especially indicates how it is intended that the Article should be construed when
considering the meaning of conditions relating to the procedure for entry in a register of
trade unions.

The words “including conditions as to the minimum number of persons necessary to

constitute a Trade Union qualified for registration” indicate the type of condition
intended to be included in the expression ‘conditions relating to the procedure for entry in
a register ‘without this specific inclusion it might be said that similar conditions do not
relate to procedure. However, the specific inclusion leaves the question as to such
conditions beyond doubt. The condition in section 9(8) (c) of the Industrial and Labour
Relations Act, which seeks to restrict the number of unions that can be registered to
represent persons in the same trade profession, is ejusdem generis, and is equally covered
by the provision allowing for the imposition of reasonable conditions. For this reason I
would find that the section is not ultra vires the constitution.

264
With regard to the question of whether or not a union of secondary school teachers is
eligible for registration, it is necessary to consider the intention of the wording of section
9(8) (c) of the Industrial and Labour Relations Act. The section reads as follows:

“Nobody registering as a trade union shall be registered if it

purports to represent a class or classes of employees already represented by an existing
trade union or are eligible for membership of an existing trade union unless the union
intended to be registered represents a specific trade or profession or category of
employees who are qualified to form a trade union.”

Here a distinction is made between classes of employees and categories of employees.

The section provides that, even though employees may represent a class or classes of
employees already eligible for membership of an existing trade union, (as in this case)
these employees may be registered as a union if such a union represents a specific
category of eligible employees who are qualified to form a trade union.

The first part of the section, which prevents members of the same class of employees
from registering as a separate trade union, is qualified by the second part of the section
which provides that, if they form a specific category of employees in the same profession,
they may be allowed to register.

The intention of the section is clear. It is to prevent a proliferation of trade unions within
a single trade, profession or industry; that is the effect of the first part of the section. The
second part of the section however, if it is construed as it is worded, would allow the
registration as a trade union of any group of employees who could show that they
represented a specific trade or profession or category of eligible employees. Under the
section no group could register unless it came within that provision, and this, to a certain
extent, would restrict the number of trade unions which could be registered. There would
however, still be a number of groups in numerous categories and sub categories who
would be qualified to be registered, and if they were so registered, there would be a
plethora of trade unions, thus defeating the object of the section. In order to avoid this
situation, the section must be construed, if it can be, to give effect to the intention of the
legislature, as manifest in both the first and second parts of the section.

The guide lines of construction followed by this court are set out in the case of Attorney
General & Anor v Lewanika & Ors (1). In that case this court followed the relatively
new principle of purposive construction set out in the English cases cited therein, and
said, at p.30 “It follows, therefore, that whenever the construction gives rise to an
unreasonable and an unjust situation, it is our view that judges can and should use their
common sense to remedy it - that is by reading words in if necessary - so as to do what
Parliament would have done had they had the situation in mind.”

In this case, as I have indicated, a strict interpretation of the section could give rise to an
unreasonable situation in that the intention of the legislature might be defeated, and it is
necessary to construe the section in some way that follows the intention of the legislature.
For the purposes of this case it is necessary to consider whether there is anything in

265
favour of the registration of the proposed union of the respondents other than the mere
fact that they form a specific category of eligible employees.

The evidence in this case was given by the first respondent, Mr Fabian Zulu. He said that
he was a secondary school teacher and he had applied to register a union on behalf of
secondary school teachers, in respect of whom a list of one hundred names was submitted
to the Labour Commissioner. He said that the majority of members of the existing union,
the Zambia National Union of Teachers, were primary school teachers, that, because they
were in the minority, the secondary school teachers did not have their grievances dealt
with by the union, and, that the union was more concerned with matters of salary and not
with other conditions of service. In another part of his evidence he said that teaching in a
secondary school is different from that in a primary school because secondary school
teachers take specialised subjects and they also have higher qualifications. There was no
evidence to contradict this evidence, and, in the court below, as in this court, the only
argument against the registration of the secondary school teachers union was that there
was already a union for teachers which catered for all members. There was no objection
from the existing union.

In considering the application of s.9(8) (c) of the Industrial and Labour Relations Act and
its construction under the principles which I have mentioned, one of the matters to take
into account is whether the respondents are already adequately represented by an existing
union. If they are adequately represented, there would be no need for the formation of a
new union, and the provisions of the second part of section 9(8) (c) of the Act could not
be called in aid, because the formation of such a new union would be contrary to the
general restriction intended by the section. On the evidence adduced, however, I would
find that, as a minority group, the respondents are not adequately represented, and, in
order to uphold their constitutional rights, they should be allowed to form a union
independently of other teachers.

I would hold that the proposed secondary school teachers union of Zambia comprises a
specific category, different from other teachers, who are qualified to form a trade union
within the terms of section 9(8) (c) of the Industrial and Labour Relations Act, and that
its members are not adequately represented by any other union.

I would find that the provisions of section 9(8) (c) of the Industrial and Labour Relations
Act are intra vires the Constitution and allow for the registration of a separate union for
secondary school teachers.

I would dismiss this appeal and uphold the order made in the High Court, with costs to
the respondents.

MUZYAMBA, J.S.: I have read the judgement of my learned brother Gardner, and, for
the reasons that he has given, I would also dismiss the appeal with costs to the
respondents to be taxed in default of agreement.

Gardner J S - By a majority the appeal is dismissed with costs to the respondents.

266
Appeal dismissed.

WILLIAM DAVID CERLISLE WISE v ATTORNEY-GENERAL (1990 - 1992)

Z.R. 124 (H.C.)

HIGH COURT
B.M. BWALYA, J.
16TH DECEMBER,1991
(HP/668 OF 1989)

Flynote

Land - Compulsory land acquisition - purpose for acquisition must be public one -
Issue of public use judicial one - Depends on facts of each case.

Headnote

The silence of the Land Acquisition Act cap 296 on the question of the purpose or
purposes for which the State may compulsorily acquire property upon payment of
compensation does not per se give the State a blanket right to compulsory acquisition
without any cause or purpose. Furthermore, the purpose for compulsory acquisition of
property upon payment of compensation must be a public one. What constitutes public
use frequently and largely depends upon the facts surrounding the subject. The issue of
public use is a judicial question and one of law to be determined on the facts and
circumstances of each particular case.

Cases referred to:

(1) Clark v Nash 148 US 361; 25 S. Ct., 676; 49 L. ed. 1085.
(2) Mills v St Clair County 8 How 569; 12L. ed. 1201.

Legislation referred to:

1. Land Acquisition Act, Cap. 296, ss. 5, 6 and 17.

Other works referred to:

(1) Halsbury's Laws of England 4th ed. vol 8 para. 50.
(2) de Smith's Judicial Review of Adminstrative Action, 4th ed.,
pages 335 et seq.

For the plaintiff: A. M. Hamic of Messrs Solly Patel, Hamir and Lawrence.
For the defendant: J. Mwanachnage, Principal State Advocate.
Judgment

267
B.M. BWALYA, J.:

This is the plaintiff's claim by way of writ of summons whose details in the statement of
claim are as follows:

1. By a will dated 18th January, 1979 the late Eric Falkenburg

Hervey (''the deceased'') bequeathed to his nephew the plaintiff his leasehold properties
being the remaining extent of Farm No. 134a Mazabuka and Subdivision No. 1 of Farm
136a (''the farm'').
2. The deceased died on 10th May, 1980 and on 27th
November, 1981 the executors of the deceased assented to the bequest of the farm in
favour of the plaintiff who thereby became tenant thereof from the President for a term of
100 years from 1st July, 1975.
3. That E. F. Hervey Limited was at the date of deceased's death
in occupation and working on the said farms for its use and benefit and continues in such
occupation up to the date hereof.
4. By an agreement made in writing the plaintiff granted E. F.
Hervey a lease of the said farms excluding the main residence thereon for a term of 12
months from 1st September, 1982 at a rent of K2 500.00 per month payable monthly in
advance and the said E. F. Hervey Limited undertaking to vacate the farms on 31st
August, 1983.

p125

5. That E. F. Hervey Limited agreed thereto and continued in

possession thereof but notwithstanding the plaintiff's written notice to them on about 20th
June, 1983 they held over the farms and kept the plaintiff out of possession thereof from
and after 31st August, 1983 and in addition thereto failed and/or neglected to pay the
agreed rate of K2 500.00 per month for the period of 1st May, 1983 to 31st August, 1983.
6. That the plaintiff commenced legal proceedings against E. F.
Hervey Limited on 22nd September, 1983 for inter alia possession of the said farms,
arrears of rental and mesne profits.
7. That on 18th November, 1987 the High Court for Zambia
adjudged that the plaintiff is the owner of the said farms entitled to possession thereof of
and mesne profits from 1st September, 1983 to date of judgment.
8. That E. F. Hervey Limited appealed the decision of the High
Court to the Supreme Court on 18th December, 1987. It secured a stay of execution of
the order for possession for six months and a further four months thereafter.
9. On 24th November, 1988 the Honourable Mr Justice M. S.
Ngulube, Deputy Chief Justice in Chambers, found no basis to stay execution on the
award for possession of the farms as the two previous stays of execution were for the
purpose of E. F. Hervey Limited harvesting and removing themselves and it would be
totally in equitable to allow them to plant new crops and so again stretch their claim for
further relief against the lower court's judgment in that respect.

268
10. That about the week following the said decision of the
Deputy Chief Justice the then Right Honourable Prime Minister E Kebby
Mosokotwane, M.C.C., MP, called the plaintiff to his offices and infomed him one
Raymond Barrett of E.F.Hervey Limited had made representations to him and the
plaintiff should permit him or his company to continue farming on the plaintiff's farms.
11. The plaintiff declined to agree to the request and placed his
reliance on the decision of the Court as aforementioned.
12. Therefore the Honourable Minister of Water, Lands and
Natural Resourses Mr P. Malukutila, M.C.C., MP, requested the plaintiff's attendance at a
meeting at his Chambers. The plaintiff attended the offices at which time he also found
present there the said Raymond Barrett, one Patrick Katyoka and the Member of
Parliament where the farms are located also there to attend the same meeting. The
Minister was not present and the meeting was aborted.
13. That E. F. Hervey Limited moved the Full Bench of the
Supreme Court to set aside the decision of the Honourable Mr M.S. Ngulube, Deputy
Chief Justice and the Full Bench of the Supreme Court presided by the Honourable the
Chief Justice, Annel Musenge Silungwe dismissed its motion on 27th December, 1988.
14. On 27th December, 1988 E.F. Hervey Limited withdrew the
substantive appeal but did not serve notification thereof on the I plaintiff until after 13th
January, 1989.
15. On 9th January, 1989 the Sheriff of Zambia and his bailiff
sought to enforce a writ of possession issued by the High Court for Zambia and on the
same day immigration officers showed a deportation order purported

p126

to have been signed by the Honourable Minister of State for

Home Affairs who had earlier visited the said farms.
16. The plaintiff was immediately detained in prison pending
deportation. On 13th January, 1989 he was served with two notices of intention to
acquire property and to yield up possession in respect of the farms pursuant to ss. 5 and 6
of the Lands Acquisition Act 1970. Copies of the said notices were purported to be
served on Raymond Hervey Barrett. The plaintiff and Raymond Hervey Barret were
required to yield up possesion of the farms on or before 12th March, 1989.
17. That E. F. Hervey Limited and Raymond Barrett had
continued to be in possession and occupation of the said farms notwithstanding the
judgment of the High Court, the orders of the Supreme Court and the writ of possession
issued by the High Court and executed by the bailiff.
18. That the defendant has dispossessed the plaintiff of the said
farms and purported to acquire the said farms from him and give the said farms to E. F.
Hervey Limited. The plaintiff avers that the defendant's actions undermine and render the
adjudicating authority vested in the continuationally established judiciary nugatory.
19. The plaintiff further avers that the defendant's actions in
compulsory acquiring the plaintiff's said farms and giving it to E. F. Hervey Limited and
or Raymond Barrett a private individual and institution whatever the terms of tenure is

269
not and cannot constitute an acqusition in the national interest as envisaged in the
Constitution and the Compulsory Acquisition Act and is wholly in breach thereof.

The plaintiff claims:

(i) (a) An order and or decalaration that the notices of intention

to acquire property and to yield up possession dated 13th January, 1989 served on
plaintiff's representative whereby the defendant purported to compulsory acquire the
plaintiff's two farms pursuant to s. 5 and 6 of the Land Acquisition Act 1970, namely the
remaining extent of farm 134a 'Springs' and Subdivision 1 of Farm 136a, both at
Mazabuka, Southern Province of Zambia, is wrongful, irregular and unlawful and of no
legal effect whatsoever.
(b) The compulsory acquisition of the said two farms pursuant to s. 5 and 6 of the
Land Acquisition Act 1970 is wrongful, irregular and unlawful.
(ii) An order or declaration that the plaintiff is the owner of the
said two farms.
(iii) An award of damages for wrongful compulsory acqusistion of
the said farms.
(iv) Further and other relief.

The statment of defence is as follows:

1. Paragraphs 2 and 3 within the personal knowledge of the

plaintiff.
2. The defendant puts the plaintiff to strict proof of the matters
raised in paras. 4 and 5 of the statment of claim.
3. Paragraphs 6, 7, 8 and 9 are within the personal knowledge of
the plaintiff.
4. The defendant puts the plaintiff to strict proof of the matters
raised in paras. 10, 11 and 12 of the statment of claim.

p127

5. Paragraphs 13 and 14 are within the personal knowledge of

the plaintiff.
6. The defendant admits that the plaintiff was declared a
prohibited immigrant, and was detained pending deportation. The defendant further
admits that the plaintiff was served with notice to yield up possession.
7. The defendant denies para. 7 of the statement of claim.
8. The defendant denies that the farms were compulsorily
acquired for the purpose of giving them to E. F. Hervey Limited, but argues that the same
were acquired in the interest of the Republic, and had nothing to do with court cases
between the plaintiff and Hevey Limited and Raymond Barrett.

9 (a) The notices of intention to acquire property are

legal, proper and made in good faith, and therefore valid.

270
 (b) The compulsory acquisition of the said two farms is
neither wrongful, irregular nor unlawful, and therefore the land is now properly vested in
the President.

10. As for damages, since compensation is being worked out

under the Lands Acquisistion Act, no damages can be awarded by the Court. The proper
course of action to take if dissatisfied with the amount for compensation that will be paid
will be to appeal to Parliament.

The plaintiff did not give evidence because he was detained and then deported but called
two witnesses. The defendant was represented and in attendance but called no witnesses.

The facts emanating from the evidence, documents and pleadings before this Court are as
follows:

1. The plaintiff came to Zambia in 1952 and, in return for

devoting his life in assisting his uncle Eric Hervey on his farms in Zambia, he was to
inherit the said two farms and in May, 1980, upon the death of his said uncle, he did
inherit the two farms which are now the subject matter of this action.
2. The plaintiff permitted the widow, after the death of her
husband, to continue farming in the name of the company E. F. Hervey Limited free of
charge until September, 1982, when he granted the widow's company a lease for a period
of 12 months.
3. The company, now owned by Raymond Barrett and his wife
Lynn, refused to give up possession and succeeded in protracting the dispute in court
until November ,1987 when the High Court adjudicated thereon and held in favour of the
plaintiff. The company secured two temporary stays of execution of the judgment
pending its appeal against the judgment of the High Court to the Supreme Court.
4. The Supreme Court, however, on two occasions, the first in
Novmber, 1988 and again in late December 1988, dismissed the defendant's application
for stay of the order for possession pending the determination of the appeal. The effect of
the order was that E. F. Hervey Limited were subject to removal from the farms by the
Sheriff. Writ of possession issued by the High Court of Zambia was partially executed by
the Sheriff of Zambia on 9th January, 1989 but on 10th January, 1989 E. F. Hervey
Limited moved back the items removed by the Sheriff and for reasons best known to the
Sheriff no further action was taken by him on the writ of possession.

p128

5. Instead, the plaintiff, an established resident, was detained by

immigration officers on the night of 9th January, 1989 and, whilst in prison on 13th
January, 1989 was served with the two notices of intention to acquire the two farms. The
plaintiff was compelled to leave the country and did so shortly thereafter without
regaining freedom.

The evidence of PW1 Munir Khan established the following:

271
(i) He testified in proceedings bearing case No.1983/HP/1471
and had sight of Judge Irene Mambilima's judgment in those proceedings. The Minister
of Land was also aware of the judgment of the High Court and orders of the Supreme
Court.
(ii) He had met representatives and officers of the company E. F.
Hervey Limited, namely Raymond Barrett and Patrick Katyoka, on three to four
occasions in his office.
(iii) The witness is aware that E. F. Hervey Limited has been in
possession of the said two farms all along. Initially it was in possession because the
notifications dated 13th January, 1989 permitted Raymond Barrett to continue occupying
the farms until 12th March, 1989. Thereafter someone authorised them to continue
occupying the farms until 26th June, 1989 when he formally allowed E. F. Hervey
Limited to continue farming. The company is still in occupation and possession of the
farms.

The defendant's position from the pleadings is that the farms in question were not
acquired for the purpose of giving them to E. F.Hervey Limited but were acquired in the
national interest totally divorced from the previous proceedings before the Courts.
However, the plaintiff parries this contention by arguing that this contention is
necessarily suspect in the light of the defendant's earlier denial that E. F. Hervey Limited
is not in possession and occupation of the two farms.

The plaintiff further argues that the defendant has not pleaded what national interest the
farms were acquired for, nor has the defendant attempted to lead any evidence in that
regard and that even the resolve, if any, has not been produced in Court. It is the
plaintiff's submission that it is incumbent upon the defendant - the State, in this case -
to say the purpose for which property (the two farms) is compulsorily acquired.

It is further the plaintiff's contention that it is not sufficient for the defendant to state that
because compensation is offered it need not stipulate the purpose of acqusition other than
national interest or interest of the Republic. The plaintiff also submits that in the absence
of any evidence whatsoever, it could therefore be concluded that the use for which the
two farms have been employed, as being the national interest or interest of the Republic,
the defendant (State) has in mind - the use by E. F. Hervey Limited.

In support of the foregoing contention and arguments, which unfortunately were not
challenged by the defendant, the plaintiff cited several authorities which I shall refer to in
the course of the judgment. In spite of the cross-examination of the plaintiff's witnesses,
the evidence of the plaintiff remained unchallenged and uncontradicted.

This case hinges on the question of whether the said compulsory acquisition

p129

272
of the two farms was done mala fides (in bad faith). The plaintiff says it was done in bad
faith. The defendant gives a flat no and pleads that notices of intention to acquire
property are legal, proper, made in good faith and therefore valid. Be that as it may, I
proceed to examine the law on the question of bad faith vis-à-vis the Act in question.

The Lands Acquisition Act, Cap. 296 of the Laws of Zambia empowers the President of
the Republic of Zambia, whenever he is of the opinion that it is desirable or expedient in
the interest of the Republic so to do, compulsorily to acquire any property or any
description that is the general thrust of this Act. The Act does not stipulate the purpose or
purpose for such compulsory acquisition. I should hasten to say that the silence of the Act
on the question of the purpose or purpose for which the state may compulsorily acquire
property upon payment of compensation does not per se give the State a blanket
compulsory acquisition without any cause or purpose. There is a plethora of case law in
common-law jurisdiction which shows that where no purpose has been indicated in the
statute the Courts will look at the intention of the Legislature and invariably give an
implied purpose. This is an indication that there can be no compulsory acquisition
without cause or purpose.

Furthermore, in common-law jurisdictions the purpose for compulsory acquisition of

property upon payment of compensation must be a public one. What constitutes public
use frequently and largely depends upon facts surrounding the subject. It has been held
that the letting of private property not for public use but to be leased out to private
occupants for the purpose of raising money is an abuse of the power of eminent domain
and may be redressed by action at law like any other illegal trespass, done under an
assumed authority. The issue of public use is a judicial question and one of law to be
determined on the facts and circumstances of each particular case.

In the case before me the evidence has shown that aquisition of the two farms and the
allowing of E. F. Hervey Limited and Mr Barrett to remain in occupation of the said farm
for agreed rent put the compulsory acquisition, especially the purpose for such
compulsory acquisition, into question. It is needless in my view to over-emphasise that
this transaction tainted the compulsory acquisition and is a pointer or indication that it
could not have been done in good faith especially taking into account the facts and
circumstances surrounding the compulsory acquisition. For instance the High Court and
the Supreme Court made certain decisions in regard to the subject matter. The detention
and the deportation of the plaintiff are matters that I have taken judicial notice of and
indeed the timing of the compulsory acquisition cannot be ignored albeit s.17 of the Land
Acquisition Act, Cap. 296, which reads:

''Where a notice to acquire any land under this Act has been
published in terms of s.7, the persons entitled to transfer the land shall, notwithstanding
anything to the contrary contained in any other law or in any order of any court otherwise
than under this Act, within two months of the publication of such notices transfer the
same to the President.''

273
Which the Minister of Lands and Natural Resources referred to in his correspondence
with the plaintiff's advocates. Taking the foregoing section

p130

into account and the total circumstances of this case, is what I may call a deliberate move
by the Minister to negate the decision of the Courts, the matter cannot be left to rest there.
All these circumstances as shown in evidence of the plaintiff and his submissions, in my
view and finding, amount to the exercise of discretion in bad faith.

In the case before me the compulsory acquisition of the two farms, as I find it, was solely
for the interest of an individual company, E. F. Hervey Limited, and its officers, Mr
Barrett being one of them. The purported interest of the Republic is too remote, if at all, a
reason and far-fetched. It cannot be sustained in law. What the said company and its
officers failed to acquire before the Courts of law cannot be allowed to be acquired
through intervention of the state (executive) acting in violation of the rule of the law. I
fully agree with the learned counsel for the plaintiff's submission in this regard that 'such
action is scandalous and not acceptable in a democratic society like Zambia'.

It is further clear from the facts and circumstances shown in evidence that there was no
present and immediate need for the purported acquisition of the property in question in
the national interest or interest of the Republic. See Halsbury's Laws of England 4th ed.
vol 8 para. 50.

In the instant case the state has not to this day applied the farms for a public purpose.

As I have already found that the defendant exercised his discretion in bad faith, the
purported compulsory acquisition is null and void ab initio therefore the plaintiff's action
succeeds having proved his case on a balance of probabilities. For the avoidance of E
doubt the declaration and order of the Court is that:

(a) the notices of intention to acquire property and to yield up

possession dated 13th January 1989 served on the plaintiff's representative whereby the
defendant purported to compulsorily acquire the plaintiff's two farms under ss. 5 and 6 of
Lands Acquisition Act, Cap. 296, namely the remaining extent of Farm 134a 'Spring' and
sub-division 1 of Farm 136a both at Mazabuka Southern Province of Zambia, are
irregular and unlawful and therefore nullified;
(b) the compulsory acquisition of the said two farms is null and
void ab initio;
(c) the plaintiff is and continues to be the owner of the said two
farms;
(d) the plaintiff is awarded damages to be assessed by the learned
Deputy Registrar;
(e) the defendant is condemned in costs, in default to be taxed.

Application granted.

274
993 ZR p15
EDWARD SINYAMA v THE PEOPLE (1993) S.J. 15 (S.C.)

SUPREME COURT
NGULUBE, C.J., SAKALA AND CHIRWA, JJ.S.
16TH FEBRUARY AND 6TH APRIL, 1993.
S.C.Z. JUDGMENT NO. 5 OF 1993

Flynote

Evidence - Res getae - When the possibility of concoction should be disregarded by the
court

Headnote

The appellant was sentenced to suffer death for the murder of his estranged wife. The
particulars were to the effect that on 26th August, 1989, he murdered his wife Eunice
Tembo. The Prosecution’s case was that on that fateful day the appellant collected the
deceased from her uncle’s house in Kalingalinga compound where she was then residing
and went with her to his own house half a kilometre away. It was the Prosecution’s case
that after an argument the appellant doused the deceased with paraffin and set her ablaze.
She fled to her uncle’s house from whence she had a short while ago been collected and
in answer to a question told her relatives that it was the appellant who had set her ablaze
after losing his temper over a pair of shoes she had lost. The appellant appealed.

Held:

(i) In matters of res getae, if the statement has been made in conditions of
approximate, though not exact, contemporaneity by a person so intensely
involved and so in the throes of the event that there is no opportunity for
concoction or distortion to the disadvantage of the Defendant or the advantage
of the maker, then the true test and the primary concern of the court must be
whether the possibility of concoction or distortion should actually be
disregarded in the particular case.

Cases referred to:

275
(1) The people v John Nguni (1977) Z.R. 376
(2) Chisoni Banda v The people S.C.Z. Judgment No. 6 of 1991
(3) Ratten v R (1971) A.C. 376
(4) R v Andrews (1987) I ALL E.R. 513

For the Appellant: Mr. M.S. Mwanamwambwa, of Lisulo & Co.

For the Respondent: Mr. F. J. Mensah, State Advocate
_________________________________________
Judgment

NGULUBE, C.J.: Delivered the Judgment of the Court.

The appellant was sentenced to suffer death for the murder of his estranged wife. The
particulars were to the effect that on 26th August, 1989 he murdered his wife Eunice
Tembo. The Prosecution’s case was that on that fateful day the appellant collected the
deceased from her uncle’s house in Kalingalinga compound where she was then residing
and went with her to his own house half a Kilometre away. It was the Prosecution’s case
that after an argument the appellant doused the deceased with paraffin and set her ablaze.
She fled to her uncle’s house from whence she had a short while ago been collected and
in answer to a question told her relatives PWs 2 and 3 that it was the appellant who had
set her ablaze after losing his temper over a pair of shoes she had lost. The prosecution
relied on the Witnesses who saw her being collected and who testified to her return
shortly afterwards in a terrible condition and who also told the court what the deceased
had told them when questioned. They also relied on a warn and caution statement to the
Police which was a full confession and which was admitted in evidence after a trial
within the trial. The Prosecution further relied on evidence from the investigating Police
Officer who deposed that the appellant showed her at his house the kerosene and box of
matches used and a piece of cloth which had been torn from the skirt the deceased was
wearing. The deceased died from the very severe and extensive burns suffered. The
learned trial judge did not in her judgment allude to the warn and caution statement but
she did refer to the rest of the evidence which we have outlined and came to the
conclusion that the appellant had deliberately poured kerosene on his wife and set her on
fire. The appellant did not give evidence in his own defence, a course he was perfectly
entitled to adopt. He appeals to this court against his conviction.

On behalf of the appellant, Mr. Mwanamwambwa advanced four grounds of appeal. Two
of these related to the warn and caution statement whose voluntariness was disputed. As
we indicated during the hearing, we had no difficulty in discounting the confession
statement which even the learned trial judge ultimately seemed to have ignored. We
could not allow the statement to stand when the ruling given following a trial within the
trial was so brief that the appellants was effectively deprived of the opportunity to
challenge its correctness on appeal. In addition, the brief reasons given indicated that the
burden of showing voluntariness was misplaced when the learned trial judge dealt only
with the inconsistencies in the appellant’s account and found he was not to be believed
because he had exaggerated the beatings and had not adduced medical evidence. It was

276
for the Prosecution to satisfy the court that the statement was free and voluntary rather
than that the appellant failed to establish the involuntariness. With the disallowance of
the confession statement, the issue was whether the remainder of the evidence was
adequate to sustain the conviction. We are alive to the argument by Mr.
Mwanamwambwa that, although the learned trial judge did not refer to the confession in
the Judgment, she must have been influenced by it in coming to the conclusion that the
appellant doused the deceased with kerosene and set her ablaze. There was in fact no
support for this line of argument in the record and the submissions suggesting other
possible inferences, such as suicide, could only be entertained if we accepted counsel’s
arguments on the statements which the deceased made to PWs 2 and 3, a matter to which
we now turn.

The evidence from Pws 2, 3 and 4 showed that the appellant came to fetch his wife but
shortly afterwards she arrived, severely burnt. She was crying and calling her uncle PW
2 who asked her what had happened. She then told the Witnesses how the appellant had
burnt her. According to PW 3, this witness had equally asked the question, “what is the
matter?” and the deceased had then told them what had transpired. In his major ground
of appeal Mr. Mwanamwambwa submitted that what the deceased said was wrongly
admitted as res gestae when it was hearsay evidence. It was his submission that, because
the deceased walked or ran for half a kilometre from the appellant’s house and because
what she reported was in response to a question, her statement lacked spontaneity and did
not qualify to be treated as res gestae so as to be an exception to the hearsay rule. It was
suggested that there was in this case time and opportunity to fabricate a statement to the
disadvantage of the estranged husband . Mr. Mensah counted these arguments by
submitting to the effect that the deceased did not have time to concoct a statement and
she made her statement when she was burning and in a frame of mind induced by the
most powerful consideration of the tragedy in which she found herself.

We have considered the submissions. The issue of res gestae has been considered by our
courts in a number of cases the leading one at the High Court level being that of The
People v John Ng’uni (1) which we approved in Chisoni Banda v The People. (2)

We have also considered the res gestae principle as elaborated in cases like Ratten v R
(3) and R v Andrews (4) and the discussion to be found in paragraphs 11-23 to 11-25 of
Archbold Criminal Pleading, Evidence and Practice, 43rd Edition. It is apparent from the
authorities that the test of admissibility is not that the statement must have been made in
conditions of exact contemporaneity as part of the transaction or event causing harm, as
argued by Mr. Mwanamwambwa. It is also not correct that a statement will be ineligible
to be treated as part of the res gestae if a question has been asked and the victim has
replied or if the victim has run for half a Kilometre to make the report. If the statement
has otherwise been made in conditions of approximate, though not exact,
contemporaneity by a person so intensely involved and so in the throes of the event that
there is no opportunity for concoction or distortion to the disadvantage of the Defendant
or the advantage of the maker, then the true test and the primary concern of the court
must be whether the possibility of concoction or distortion should actually be disregarded
in the particular case. The possibility has to be considered against the circumstances in

277
which the statement was made. In the case at hand, the event was certainly unusual or
dramatic or traumatic.

When the deceased rushed back to her uncle’s place and explained what had just
happened, her statement was sufficiently spontaneous and the time factor involved short
enough to have enabled any court to find that the deceased did not have any real
opportunity for reasoned reflection. The evidence speaks for itself and we find that the
deceased made explanation, in answer to the inquiry by concerned relatives, while
labouring under the compelling pressure of the event and as part of the event. It follows
that we do not uphold the ground of appeal in this respect.

Finally, there was a ground of appeal alleging error on the part of the trial court when it
was concluded that the appellant had set the deceased on fire. We are satisfied that the
submissions in this behalf do not hold when regard is had to all the evidence that was
properly accepted. There was in this case, a cogent circumstancial case when the
appellant collected the deceased who rushed back shortly afterwards in a terrible state.
She forthwith identified the appellant as the culprit and he subsequently produced the
kerosene and matches used to the Police who were investigating the incident. We are
satisfied that, on the evidence discussed, the conviction was fully justified.

The appeal is dismissed.

Appeal dismissed

278
LEMMY BWALYA SHULA v THE PEOPLE (1996) S.J. (S.C.)

SUPREME COURT
M.M.S.W NGULUBE C. J., SAKALA AND CHIRWA, JJ.S.
2ND APRIL AND 7TH MAY, 1996.
(S.C.Z. JUDGMENT NO. 6 of 1996)

Flynote

Evidence – Credibility of witness- Resolving a conflict between two conflicting stories in

favour of one of the parties

Headnote

The appellant was tried and convicted of a charge of murder. The prosecution case was
that on the material day, PW3 was selling home brewed beer at her house. The deceased-
who was her elder sister- was with her. Four men came to buy the last of the beer and sat
down to drink. The appellant came along and joined the four men; he picked a quarrel
with one of the four men; the man left. The appellant then picked a quarrel with the other
of the three men who also left. Since there was no further business, the deceased and
PW3 went to sit in a shelter where there was a fire and the appellant who had not gone
away with everybody else went to join them. The ladies extinguished the fire in the hope
that the appellant would go away. The deceased asked him to leave and as PW3 and the
deceased were about to retire into their house, the appellant suddenly picked up a
pounding stick and smote the deceased on the head. The deceased died instantly from the
head injury sustained. The foregoing was the version from the prosecution as deposed to
by PW3. Her evidence conflicted with that of the accused who claimed that when he was
attacked by the four men drinking beer at PW3’s home, the deceased tried to stop the
fight and was killed during the riotous fighting and that the accused was not aware who
hit the deceased. The High Court sentenced him to death. On appeal, the Supreme Court
dismissed the appeal against conviction but allowed the appeal against sentence.

Held:

(i) An adverse finding as to credit is very different on an issue of credibility i.e.

resolving a conflict between two stories in favour of one of the parties. An
adverse finding as to credit is a finding that the witness is not to be believed;

279
 such a finding is in turn one of the factors which will influence the court in its
decision as to which of the two conflicting versions of an affair it will accept.

(ii) It is not valid to hold a witness to be untruthful for no other reason than the
existence of the very conflict which the court is called upon to resolve; such an
approach would be purposeless and circular.

Case referred to:

(1) Chizonde v The People (1975) Z.R. 66

For the Appellant: Mr.. V. A. Kabongo, Director of Legal Aid

For the Respondent: Mrs. E. M. Chipande, Senior State Advocate
_________________________________________
Judgment

M. M. S. W. NGULUBE, C.J.: delivered the judgment of the court.

The appellant was tried and convicted of a charge of murder. The particulars alleged that
on 30th July, 1994 at Ndola he murdered Lister Kamwengo. He was sentenced to death.
When we heard the appeal on 2nd April we dismissed the appeal against conviction.
However, we allowed the appeal against sentence; found that there were extenuating
circumstances and imposed a sentence of 10 years I H. L. with effect from 31st July,
1994, the day the appellant was taken into custody. We said we would give our reasons
later and this we now do.

The prosecution case was that on the material day, PW3 was selling home brewed beer at
her house. The deceased- who was her elder sister- was with her. Four men came to buy
the last of the beer and sat to drink. The appellant came along and joined the four men; he
picked a quarrel with one of the four men; the man left. The appellant then picked a
quarrel with the other three men who also left. Since there was no further business, the
deceased and PW3 went to sit in a shelter where there was a fire and the appellant who
had not gone away with everybody else went to join them. The ladies extinguished the
fire in the hope that the appellant would go away. The deceased asked him to leave and as
PW3 and the deceased were about to retire into their house, the appellant suddenly picked
up a pounding stick and smote the deceased on the head. As the learned trial
commissioner observed, the appellant must have felt snubbed. The deceased died
instantly from the head injury sustained. The foregoing was the version from the
prosecution, as deposed by PW3 who was believed.

The appellant’s version, which was not believed, was that a fight had erupted between
him and the other four men, which some by-standers stopped. A short while later as he
was about to drink a cup of beer given him by one Kunda, the son of PW3, the latter (i.e.
PW3) attacked him; grabbed the cup, poured the beer on the appellant and slapped him.
Thereafter the other four men came with sticks and started to beat the appellant who was

280
felled to the ground. According to the appellant, the situation was extremely confused –
“some sort of riot” is how he had put it. The deceased had tried to stop the fight and the
appellant does not know who hit the deceased or how the deceased got injured in the
melee. All he knew was that PW3’s son Kunda had immediately accused him of causing
the injury; whereupon he was apprehended and tied up.

On behalf of the appellant, the learned Director of Legal Aid has advanced two grounds
of appeal. The first was that the learned trial Commissioner erred in rejecting the
appellant’s version and in accepting that of PW3 on grounds of credibility. It was pointed
out that while PW3 had stated that the appellant did not drink any beer at her house, the
investigating officer had stated that he had learnt that the appellant had consumed some
beer at PW3's place. What the investigating officer said he had heard tallied with the
appellant’s account. It was argued that because of this discrepancy, PW3 had lied on this
point and the remainder of her evidence should not have been preferred to that of the
appellant. We were referred to Chizonde v The People (1975) Z.R. 66.

The learned Senior State Advocate urged us to accept that the issue of credibility had
been properly handled and that PW3 ought not to be held to have been untruthful on the
basis of the hearsay evidence of the investigation officer. We have considered the
Chizonde case and do not regard it as being helpful to the appellant in the manner
proposed by the learned Director. We believe it will suffice simply to quote head notes (I)
and (ii) which read:

“Held:
(i) An adverse finding as to credit is very different from a
decision on an issue of credibility, i.e. resolving a conflict between two stories in favour
of one of the parties. An adverse finding as to credit is a finding that the witness is not to
be believed; such a finding is in turn one of the factors which will influence the court in
its decision as to which of the two conflicting versions of an affair it will accept.
(ii) It is not valid to hold a witness to be untruthful for no other
reason than the existence of the very conflict which the court is called upon to resolve;
such an approach would be purposeless and circular.''

Applying the dicta in that case to the facts at hand, it would be strange to hold PW3 to be
untruthful on account of the existence of the conflict which the trial court had to resolve.
The truth is that the learned trial commissioner had addressed the issue most carefully
and he came to the conclusion that PW3 was to be believed and the appellant disbelieved.
In any event, whether the appellant had drunk some of the beer brewed by PW3 or not
could not affect the outcome of this case on the question of liability. The real conflict to
be resolved was whether the appellant smote the deceased as explained by PW3 or if
someone unknown injured her during a riotous fight as suggested by the appellant. The
court below had the advantage of seeing and hearing the witnesses at first hand and we as
an appellant court must not reverse a finding on credibility unless it is clearly
demonstrated that the trial court fell into error or failed to take proper advantage of seeing
and hearing the witnesses. There is no ground for interfering.

281
The second ground alleged error in the rejection of the defence of self-defence. The
defence alleged would only have arisen if the appellant’s version of a free-for-all fight
had been accepted so that the deceased was killed per infortunium while attempting to
separate the combatants who were using sticks. Since the appellant was not believed and
we have said the court below was not in error, this ground could not succeed either.

Turning to the sentence, we considered that the drunken circumstances generally

attending upon the occasion sufficiently reduced the amount of moral culpability so that
there was extenuation. It was for the foregoing reasons that we had determined this
appeal as earlier indicated.

Appeal on conviction dismissed

Appeal on sentence allowed and sentence reduced

282
BANDA v THE PEOPLE (1990 - 1992) Z.R. 70 (S.C.) 20

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.
15TH OCTOBER AND 19TH NOVEMBER, 1991
(S.C.Z. JUDGMENT NO. 8 OF 1991)

Flynote

Criminal procedure - Confession - Failure to administer warn and caution statement

creating rebuttable presumption of involuntariness.
Criminal procedure - Confession - Counsel informing Court that initial instructions were
that statement voluntary - Such precluding accused from receiving fair consideration of
challenge to admissibility of statement.

Headnote

During his trial on a murder charge a statement, in which he confessed to the offence,
was admitted in evidence against the appellant. There was a discrepancy between the
police officer who took down the statement and a civilian witness as to whether the
required warn and caution statement had actually been administered. In admitting the
statement the trial Court had relied heavily on a statement from the bar by the appellant's
counsel during the trial that his initial instructions had been that the statement was free
and voluntary. On appeal the Court held that the failure to administer the warn and
caution created a rebuttable presumption of involuntariness and, as there was a
discrepancy between the prosecution witnesses as to whether this had happened, it had
not been rebutted. It was further held that the statement should be excluded as the stance
taken by the appellant's counsel at the trial had amounted to actual prejudice to the
appellant. The appellant's challenge to the admission of the statement could not have
received fair consideration when defending counsel made damaging statements, contrary
to his duty to the client. The statement was excluded but, as there was sufficient other
evidence to convict the appellant, the appeal was dismissed.

p71

Cases referred to:

(1) Shamwana and Others v The People (1985) Z.R .41.
(2) The People v John Nguni (1977) Z.R. 376.

283
For the appellant: S.K. Munthali, Senior Legal Aid Counsel.
For the respondent: K. Lwali, Assistant Senior State Advocate.

Judgment

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

The appellant was convicted of the murder of Lamiwe Banda and sentenced to capital
punishment. The particulars alleged that on 18th October, 1989, at Chingola Village in
Chief Kawaza's area in Katete District, he murdered the deceased. The prosecution case
established that the deceased died from traumatic perforation of her private parts and
rectum and the allegation was that it was the appellant who inflicted the fatal injuries by
violent insertion of a knobkerrie. There was evidence from a number of witnesses that
the deceased told them it was Chisoni who had assaulted her and injured her very badly
including in the private parts. In particular, PW5 testified that on the fateful day, the
deceased had passed by her house and told her she was going to have some beer. A short
while later, the deceased came and fell in her yard and told PW5 that Chisoni had
assaulted her and injured her with a knobkerrie. PW1 was one of those summoned and
the deceased told him too that it was Chisoni who had injured her after she had rejected
his sexual advances. There was evidence also from PW2 who together with PW3
apprehended Chisoni, the appellant, that twice the appellant escaped and ran away from
them but was recaptured. PW2 testified that the appellant admitted that he had killed the
deceased and gave the reason that she had refused to have sexual intercourse with him.
There was, in addition, a full confession recorded by PW7, a police officer, and witnessed
by PW6, a civilian, who happened to be at the police station to report another matter
altogether. The warn and caution statement was admitted at first without any objection
but when allegations of assaults and inducements were made during the defence case, the
learned trial judge correctly held a belated trial within the trial and still ruled in favour of
admitting the statement. In the course of dealing with the warn and caution statement, the
learned counsel then acting for the appellant disclosed to the Court that he was surprised
by the allegation of involuntariness being raised by the accused since his earlier
instructions were that it was a free and voluntary statement and counsel gave as his
opinion that the confession was voluntary. The learned trial judge in his judgment
explicitly relied quite heavily on defending counsel's statements from the Bar as
fortifying his finding on the question of voluntariness an consequent admissibility of the
statement.

The first ground of appeal attacked the finding that the warn and caution statement was
voluntary while the second ground attacked the admission of the same statement on the
basis of unfortunate remarks from the Bar by the defending counsel. In relation to the
first limb, Mr Munthali relied on the evidence of PW5 who testified that he did not hear
any warn and caution actually being administered and that at first the appellant was
reluctant to speak and only did so when PW7 persisted. The objection raised by the
defence was based on alleged assaults and these

284
p72

were discounted after the learned trial judge found on an issue of credibility that PWs 6
and 7 were to be believed. We can find nothing wrong with that determination. However,
the complaint concerning the absence of any actual administration of the warn and
caution, although it was written at the top of of the statement, was well taken having
regard to the evidence of PW6. In terms of Shamwana and Others v The People [1] the
failure to administer a warn and caution raises a rebuttable presumption of
involuntariness and unfairness and it is for the prosecution to advance an explanation
acceptable to the Court for the breach of the relevant judge's rule if the Court is to
exercise its discretion in favour of admission. No explanation is available in this case
where PW7 took the position that he had administered a warn and caution while PW6
contradicted this. There is yet another reason why we should uphold Mr Munthali's
objection to the warn and caution statement. This relates to the second ground of appeal
which attacked heavy reliance placed by the learned trial judge on the defence counsel's
damaging statements from the Bar. In note 11 of para.1137 of Halsbury's, 4th ed., vol. 3,
the learned authors suggest that where a confession of guilt is made to counsel before
trial, he could decline to take up the defence of the case; where a confession made to him
during trial does not debar him from testing the prosecution case to the fault and setting
up available defences so long as he does not set up an affirmative case inconsistent with
the confession. The discussion at para. 1195 of the same volume of Halsbury's underlines
the duty of non-disclosure by counsel of information confided in him by his client which
counsel is not entitled to communicate to anyone else if it would be to the detriment of
his client. We agree with these observations. In this case, the stance taken by defending
counsel, hostile as it was to the accused's interests, not only put the appellant in a fix, as
the saying goes, but also resulted in actual prejudice when the learned trial judge
expressed satisfaction that, because his own lawyer had said so, the confession statement
recorded by PW7 must have been free and voluntary and the objections raised by the
appellant had to be dismissed. We do not see how the appellant's challenge to the
admission of his warn and caution statement can be said to have received fair
consideration when defending counsel made damaging statements, contrary to his duties
to the client. The grounds in this respect are upheld and the statement recorded by PW7
will be disregarded for the purposes of this judgment.

Mr Munthali sought to argue that the learned trial judge did not rely on any other
evidence and that we should not consider such other evidence. On the contrary, as Mr
Lwali pointed out, there was other evidence which the learned trial judge accepted. This
consisted of the statements made by the deceased to PWs 1 and 5 and the confession
made to PW2, a civilian who had apprehended the appellant and against whom there was
no suggestion of any impropriety. In relation to PW5, to whom the deceased made a
report immediately after the indicent, and PW1, who was told the same things later that
day, Mr Lwali submitted that their evidence was admissible as res gestae on the grounds
which were fully discussed by Cullinan, J., as he then was, in The People v John Ng'uni
[2]. He submitted that there was no possibility in this case that at the time when the
deceased spoke to the witnesses she could have distorted the

285
p73

account or concocted a story. We respectfully agree with the decision in Ng'uni that
evidence of a statement made by a person who is not called as a witness (in this case the
deceased) may be admitted as part of the res gestae and can be treated as an exception to
the hearsay rule provided it was made in such conditions of involvement or pressure as to
exclude the possibility of concoction or distortion to the advantage of the maker or to the
disadvantage of the accused. The tests discussed in Ng'uni were fully met here and the
evidence of what the deceased said was properly admitted. It is not correct, as Mr
Munthali suggested, that the accused in Ng'uni was acquitted on the rejection of this type
of evidence; he was acquitted because the eyewitnesses who purported to repeat what the
deceased said were themselves not credible and appeared anxious to conceal the presence
of and the roles played by some members of their family whom the accused had
implicated. In the case at hand, no such adverse finding on credibility was made or could
be made against PWs 1 and 5. What is more, there was nothing else in Ng'uni to support
the evidence of the suspect witnesses as to the words allegedly uttered by the deceased
there implicating the accused, while in this case there was the evidence of PW2 to whom
this appellant confessed.

We are satisfied that even had the learned trial judge excluded the warn and caution
statement recorded by PW7, he must have convicted in any event on the remainder of the
evidence.

The appeal is dismissed. We have nothing to comment on the mandatory sentence.

Appeal dismissed.

286
MUVUMA KAMBANJA SITUNA v THE PEOPLE (1982) Z.R. 115 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, J.J.S.
14TH SEPTEMBER AND 5TH OCTOBER ,1982
(S.C.Z. JUDGMENT NO.28 OF 1982)
APPEAL NO.72 OF 1982

Flynote

Criminal law and procedure - Identification - Evidence of single identifying witness -

Possibility of honest mistake - Need to rule out.
Evidence - Hearsay - Statements not properly introduced into the record and not falling
under exceptions of rule - Position of.

Headnote

The appellant was convicted of one count of aggravated robbery and two counts of
attempted murder. The trial court considered that the appellant had been properly
identified at the parade by the single identifying witness despite allegations by the
defence that the parade was improperly conducted and the inherent danger of an honest
mistake in the circumstances. Hearsay evidence was admitted supporting the conviction.

Held:

(i) The evidence of a single identifying witness must be tested and evaluated with
the greatest care to exclude the dangers of an honest mistake; the witness
should be subjected to searching questions and careful note taken of all the
prevailing conditions and the basis upon which the witness claims to recognise
the accused.

(ii) If the opportunity for a positive and reliable identification is poor then it
follows that the possibility of an honest mistake has not been ruled out unless
there is some other connecting link between the accused and the offence which
would render mistaken identification too much of a coincidence.

287
(iii) Hearsay evidence which does not fall within the exceptions to the rule and
which does not come within s.4 of the Evidence Act, Cap.170, is inadmissible
as evidence of the truth of that which is alleged.

(iv) The judgment of the trial court must show on its face that adequate
consideration has been given to all relevant material that has been placed
before it, otherwise an acquittal may result where it is not merited.

Cases referred to:

(1) Abdallah Bin Wendo and Anor v R. 20 E.A.C.A. 166.
(2) R. v Turnbull and Ors. [1976] 3 All E.R 549.
(3) Nyambe v The People (1973) Z.R 228.
(4) Chimbini v The People (1973) Z.R. 191.
(5) Bwalya v The People (1975) Z.R. 227.

p116

(6) Chate v The People (1975) Z.R. 232.

(7) Chipango and Ors v The People (1978) Z.R. 304.
(8) Miyoba v The People (1977) Z.R. 218.

Legislation referred to:

Evidence Act, Cap.170, s 4.

For the appellant: J. R. Matsiko, Legal Aid Counsel.

For the respondent: M. Mwiinga, Senior State Advocate.
________________________________________
Judgment

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

On the 14th September, 1982, we allowed the appeal of the appellant, quashed the
convictions and sentences, and said we would give our reasons for so doing later. We
now give those reasons.

The appellant was tried and convicted of one count of aggravated robbery and two counts
of attempted murder. He was sentenced to death on the former charge and to life
imprisonment on the latter charges. There was evidence from the prosecution that on
25th October 1979, three men, driving a stolen Fiat motor car, went to Kalulushi for the
purpose of staging an armed robbery at PW1's shop. One robber, the driver, remained in
the get-away car while the other two men carried out the actual robbery. There was
evidence that of these two men one was armed with a rifle which he fired into the
crowded shop injuring PWs 2 and 3, the complainants on the attempted murder charges.
PW1 hid himself under, some shelves when PW2, the customer he was serving, was shot
down. Neither of these two witnesses actually saw the robbers. PW3 ran out of the shop
and headed for the clinic as soon as he saw that he had been shot. He, too, did not

288
observe the robbers. PW4, the shop assistant, rushed out of the shop with the rest of the
customers who were chased out by the armed bandits and it was PW4 alone who stated
that he had observed the robbers and identified the appellant as the man who had
collected the cash from the till after his armed confederate had cleared the shop of the
customers. That the offences was committed was not in dispute. What was disputed was
the identification of the appellant as one of the robbers involved.

The learned trial commissioner found that PW4 had properly identified the appellant at
an identification parade, and dismissed allegations by the defence that the parade had not
been properly conducted. It is clear from a reading of the relevant passage in the
judgment that the court below considered that, having dismissed the complaint regarding
the parade, the identification at the parade alone was sufficient to warrant a conclusion
that PW4 had properly identified the appellant. This approach is manifestly
unsatisfactory. This was a case where there was in fact only a single identifying witness,
a witness who, on his own admission, was frightened and rushed out of the shop together
with the customers. PW4 had stated that he had seen the appellant entering the shop as he
himself was rushing out for safety. It is quite clear on these facts, therefore, that PW4
could only have had at best a momentary glimpse of the appellant. In these circumstances
there is a great deal of merit in the ground appeal which attacks the quality of
identification in this case. There is a string of cases which set out the correct

p117

approach to the evidence of a single identifying witness. Those cases also lay down the
requirements that a trial court should show in its judgment that it is alive to the dangers of
an honest mistaken identification. The cases (such as Abdullah Bin Wendo and Another v
R. (1) R. v Turnbull and Another (2), Nyambe v The People (3), Chimbini v The People
(4), Bwalya v The People (5) and Chate v The People (6) all establish the need to test and
evaluate with greatest care the evidence of a single identifying witness to exclude the
dangers of an honest mistake before such evidence can be regarded as reliable. The
witness should normally be subjected to searching questions, and careful note taken of
all the prevailing conditions as well as the basis upon which the witness claims to be able
to recognise the accused. If, in all the circumstances, the opportunity for a positive and
reliable identification is poor, then it follows that the possibility of an honest mistake has
not been ruled out unless there is some other connecting link between the accused and
the offence which would render a mistaken identification too much of coincidence. The
evidence in this case showed that out of four possible eye-witnesses only one frightened
witness was running out of the shop for safety. Identification in those circumstances
could hardly be regarded as reliable and, in any event, the failure on the part of the
learned trial commissioner to warn himself with regard to the possibility of an honest
mistake on the part of PW4 was misdirection.

The foregoing was compounded by a further misdirection which counsel for the appellant
has pointed out in one of his grounds of appeal. This was the learned commissioner had
made certain findings which he regarded as supporting PW4's evidence of identification
by treating as evidence the contents of statements made to the police by two prospective

289
prosecution witness who were not called to give evidence in court, but copies of whose
statements had been furnished to the court under the summary committal procedure. The
learned commissioner appears to have accepted an unsubstantial allegation made by a
police officer that some friends of the appellant had kidnapped the prospective witness to
Zaire, and, on the basis that their non-availability to testify was attributable solely to the
"clever under-handed" conduct of the appellant and his friends, he considered himself to
be at liberty to reply on their statements to the police. Accordingly, the learned
commissioner found as fact from those statements that four men had staged the robbery, a
finding which was in direct conflict with the evidence of the eye-witness, PW4, who said
three men staged the robbery. On the same basis the learned Commissioner found as a
fact that the prospective witnesses had, on 26th November 1979, at Kamatipa Compound,
identified the appellant to Detective Sergeant Sitaka, as one of the four robbers they had
seen in the get-away car at Kalulushi on the day of the robbery. The learned
commissioner further found that the statements to the police of those two prospective
witnesses fully supported the identification of the appellant by PW4, and accordingly
ruled out any question of mistaken identity.

p118

The statements relied upon were neither depositions tallied before a subordinate court nor
business records within the meaning of a. 4 of the Evidence Act, Cap. 170. In fact they
had not been introduced or tendered in evidence in any of the recognised circumstances
such as to contradict a witness. We have here a situation where statements to the police
were treated as evidence and their contents as truth in the absence of any opportunity to
challenge their purport by cross-examination of the witness deposing thereto. We can
find no provision under our laws for the use of statements to the police for this sort of
purpose. In Chipango and Others v The People (7), this court said at p.314:

"It was submitted that this court had an inherent jurisdiction

to see that justice prevailed and that in the exceptional circumstances of this case we
should regard ourselves as at liberty to look at the statements of the witnesses in question
to ascertain whether or not evidence favourable or the appellants or unfavourable to the
prosecution had not been presented to the trial court and which, if presented, might have
affected the outcome. We cannot accede to this proposition. We have made it clear in a
number of cases (see for instance, Miyoba v The People (8)) that this court cannot and
will not look at depositions on the statements supplied under the summary committal
procedure-or indeed any other statement alleged to have been made by a witness at some
other time unless that statement has been properly introduced into the record."

We are of the opinion that the condition expressed in the concluding statement of the
passage quoted above should apply to every case whether on appeal or at trial. It follows
that where the statement has not been properly introduced into the record it is not part of
the evidence on record before the court, and any use of such statement as evidence is
serious misdirection.

290
The learned trial commissioner also considered that he could rely on the evidence of
Detective Sergeant Sitaka as to what the two prospective witness had told him concerning
the, appellant on 26th November, 1979, when they allegedly led the police officer to
Kamatipa Compound where they allegedly identified the appellant to be one of the four
men who were in the stolen car which was used in the robbery at Kalulushi on 25th
October, 1979. Evidence of a statement made to a witness by a person who is not himself
called is hearsay and inadmissible where the object of the evidence is to establish the
truth of what is detained in the statement. That was the position in this case where the
court below treated the hearsay evidence as representing the truth when, quite clearly, the
statements did not fall under any of the recognised exceptions to the hearsay rule which
arise both at common law and under statute.

There is one other matter we must comment upon. The appellant had denied any
knowledge of the two prospective witnesses and had denied that Detective Sergeant
Sitaka had apprehended him on 26th November,

p119

1979, as the witness alleged. The appellant pointed out in his evidence by that date he
was already in custody at the prison. Grave doubts must arise as to the credibility of
Detective Sergeant Sitaka, when it is on record that the appellant was detained on 2nd
November, 1979, under a detention order made under reg. 33 (6) of the Preservation of
Public Security Regulations. That detention order was revoked on the 6th November,
1979, the day on which PW11 also conducted the identification parade. The evidence,
therefore, that the two prospective witnesses had led Detective Sergeant Sitaka to
Kamatipa Compound and there identified the appellant at a time when the appellant was
already in custody must, in the circumstances, be a fabrication. Yet, the court below
convicted on such evidence and did not even mention the appellant's evidence on the
point. We repeat what we have said time and again, that the judgment of any trial court
must show on its face that adequate consideration has been given to all the relevant
material that has been placed before it, and if no or insufficient consideration has been
given to evidence favourable to an accused person the verdict becomes assailable and an
acquittal may result where none was otherwise merited. The learned Senior State
Advocate has indicated quite properly in the circumstances that the State does not support
the convictions. It was for the foregoing reasons that we allowed the appeal, quashed the
convictions and sentences on all three counts and acquitted the appellant.

Appeal allowed

291
MUTAMBO AND FIVE OTHERS v THE PEOPLE (1965) Z.R. 15 (C.A.)

COURT OF APPEAL
BLAGDEN, C.J., DENNISON AND CHARLES, JJ.:
6TH MAY, 1965

Flynote and Headnote

[1] Civil Procedure - Judicial notice - test for determining what can be subject to
judicial notice: See [8].

[2] Criminal Law - Common criminal purpose - resulting liability - express

agreement not necessary - section 22 of Penal Code construed:

Under section 22 of the Penal Code the 'common purpose' need not be by express
agreement or otherwise premeditated.

[3] Criminal Law - Common criminal purpose - resulting liability - 'probable

consequence' defined - section 22 of Penal Code construed:

For purposes of section 22 of the Penal Code a 'probable consequence' is that which a
person of average competence and knowledge might be expected to foresee as likely to
follow from a given course of action.

[4] Criminal Law - Mistake of fact - burden of proof - 'full mens rea' offences:

In 'full mens rea' offences such as murder or manslaughter, the accused has the burden of
raising the issue of mistake of fact by adducing or pointing to relevant evidence, but,
once the issue is raised, the prosecution must prove beyond reasonable doubt the absence
of a reasonable mistake of fact.

[5] Criminal Law - Mistake of fact - 'reasonable' construed - section 11 of the Penal
Code construed:

292
For purposes of section 11 of the Penal Code (reasonable mistake of fact as a defence),
whether a belief or act is reasonable depends upon an objective test: whether it is likely to
be held or suffered in the circumstances by a member of modern society who has average
modern knowledge, average perception, average intelligence, average judgment and
average self control.

[6] Criminal Law - Provocation - relationship between provocation and response -

test for determining reasonableness - 'average member of modern society' -
section 182 (2) of Penal Code construed:

The 'reasonable relationship' of the force used to the provocation must be determined by
reference to the reactions of the average member of a modern society.

[7] Criminal Law - Witchcraft - reasonable mistake of fact within section 11 of Penal
Code not applicable:

A belief in witchcraft cannot constitute a defence under section 11 of the Penal Code.

[8] Criminal Procedure - Judicial notice - test for determining what can be subject to
Judicial notice:

Judges are entitled to take judicial notice of that which is the common knowledge of the
great majority of mankind.

p16

[9] Evidence - Discretion of trial judge - admissible evidence excluded - when

proper:

A judge should exercise his discretion to exclude admissible evidence only when it
appears clearly that the evidence has an unfair prejudicial tendency against the accused
out of proportion to its probative value.

[10] Evidence - Hearsay - statement made in presence of witness - admissible for

limited purpose:

Evidence of statement made in the presence of a court witness is inadmissible hearsay if

offered to prove the truth of what is contained in the statement but not if offered to prove
the fact that the statement was made.

Cases cited:
(1) Subramaniam v Public Prosecutor [1956] 1 W.L.R. 965.
(2) R. v Willis [1960] 1 All E.R. 331.
(3) Brennan v R. 1936 55 C.L.R. 253 H.C.

293
(4) Tenson Simukona and Others v R. N.R.C.A. Cases 105, 106,
107 of 1964.
(5) R. v Tolson (1889) 23 Q.B. D. 168; [1886-90] All E.R. 26.
(6) R. v Malcolm Mark and Others 1961 Criminal Law Review
173.
(7) R. v Ding [1963] 3 All E.R. 561.
(8) Thomas v R. 1937 59 C.L.R. 288 H.C.
(9) R. v Bonnor 1957 V.R. 227, 31 A.L.J 468.
(10) R. v Reynhandt 1962 107 C.L.R. 381.
(11) Woolmington v D. P. P. [1935] A.C. 462; 25 Cr.App. R. 72.
(12) R. v Maze 1951 (3) S.A. 28.
(13) Lim Chin Aik v R. [1963] 1 All E.R. 223; [1963] A.C. 160.
(14) Muyakwi Paul v R. (N.R.C.A., Case No. 2 of 1964).
(15) Greyson v R. 1961 R. & N. 337.
(16) Liversidge v Anderson [1941] 3 All E.R. 338.
(17) Hurdle and Lane Ltd v Chilton [1928] 2 K.B. 306; [1928] All
E.R. 36.
(18) R. v Denyer [1926] 2 K.B. 258.
(19) R. v Mbombella 1933 App. D. 269; 14 E & E. Dig.
(20) R. v Gadam 14 W.A.C.A. 44.
(21) Chan Kau v R. [1955] 1 All E.R. 266; [1955] A.C.206.
(22) R. v Robell [1957] 1 All E.R. 734; [1957] 1 Q.B. 547.
(23) Jackson v R. 1962 R. & N. 157.

p17

(24) Howe v R. 1958 C.L.R. 448.

(25) Christie v Leachinsky [1947] 1 All E.R. 567; [1947]3 A.C.
573.
(26) Attorney-General for Nyasaland v Jackson 1957 R.& N. 443.
(27) R. v Aspinall 13 Con 563.
(28) Chenjera v R. 1960 R. & N. 67.

Statutes construed:
Penal Code (1965, Cap. 6), ss. 11, 22, 182 (2), 183.

For the appellants: Carruthers, Smallwood, Gardner.

For the respondent: Reilly, State Advocate.
_________________________________________
Judgment

CHARLES, J.: The six appellants have appealed against their convictions of murder,
contrary to section 177 of the Penal Code (Cap. 6), by the High Court sitting at Ndola on
the 9th December, 1964. The alleged murder was of one Derek Smith at Chapaula

294
Village in the Lundazi District on the 24th July, 1964. We have dismissed the appeals for
reasons which we now give.

It was not in dispute at the trial that Derek Smith, a European Inspector of Police,
sustained wounds from which he died on the 24th July, 1964, while in command of a
police patrol at Chapaula Village, a village which had been established by a religious sect
known as the Lumpa Church.

According to the evidence of members of the police patrol, the patrol had gone to
Chapaula Village on the 24th July, 1964, in order to investigate an alleged refusal of
admission of a kapasu and two Boma messengers to the village on the previous day: the
village had a stockade on three sides with a small gate: the members of the police party
were armed with rifles, and the inspector also had a revolver and one member also had a
bayonet: the messengers and the kapasus were with the patrol: as the patrol approached
the village a man was seen lurking in the bush end was chased by members of the patrol
but he got away: nearer to the village, a woman was seen and she was also chased by
members of the patrol: the woman ran through the gate into the village, followed by the
Inspector and some other police: while the Inspector was near a house he was stabbed in
the back with a fishing spear: a shout of 'Jericho' was then raised and a number of men,
armed with spears and axes, and a woman armed with a machette, rushed out towards the
police: one of the other police received a spear wound in the arm: some of the police then
opened fire upon the oncoming villagers, some of whom were shot: the police, headed by
the Inspector, who still had the spear sticking in his back, and had lost his rifle, ran out of
the village, pursued by the men: after he had run about a hundred yards from the village,
the Inspector fell down and a number of villagers then stabbed him with spears: and all
six appellants joined in the attack on and pursuit of the police and in the stabbing of the
Inspector after he had fallen. One of the prosecution witnesses deposed that the Inspector
had not done anything to any villager before he was first stabbed and that the police did
not open fire until spears were thrown. Another prosecution witness deposed that the
police were not chased until after he heard the sound of a gun and he thought some

p18

of the guns being fired were muzzle loaders. Yet another deposed that the first shot which
he heard fired was from a gun which he recognised by the sound as a muzzle loader.

The Provincial Medical Officer, Kasama, gave evidence as to the result of a post-mortem
examination which he performed on the 26th July, 1964, on Inspector Smith's body. He
found: two wounds in the mouth and one in the left cheek; a wound on the back of the
head; two wounds in the back of the right side of the chest a wound of the right hip, and a
wound of the left leg. In the opinion of the witness, these wounds were inflicted by spears
and produced shock and haemorrhage which caused death. The post-mortem examination
showed that the body had thirty-four other wounds which appear to have been inflicted
by spears after death. In the opinion of the medical officer, the Inspector could have run
some distance after wounds in the back of the chest and face had been inflicted.

295
All the appellants, with the exception of the fourth, made three statements to the police:
the fourth appellant made two. All the statements, except the first statement by the second
appellant, were admitted in evidence without objection. The first statement of the second
appellant was admitted in evidence after a trial within a trial. The substances of these
statements may be summarised as follows:

First Appellant:

1st statement: While he was preparing mud for house

making on the 24th July at noon, he heard the noise of firearms and people shouting
'War, war'; he then took a spear and an axe and went towards the noise; he then saw a
villager lying dead on the ground and a crowd stabbing a European police officer on the
ground; and he stabbed the latter who was already dead.

2nd statement: We were many when we killed him and I

speared him.

3rd statement: I killed him together with my friends.

Second Appellant:

1st statement: He and others had left their village and gone
to reside at Chapaula Village in order to be together; they were told by one man that there
would be a big fight with UNIP and to be ready and start making weapons, which they
did; on the Thursday, two Boma messengers and a kapasu were refused admittance to the
village; on the following day the man who had told them to start making weapons said
the police would come to the village because of the refusal to admit the kapasu and
messengers, and that, in that event, they must fight back; that he then collected his spear
and took up a position on a hill; while there he heard shouts that the police were coming;
he saw one man stab a European in the back with a spear; the European started to run and
the appellant and others followed; he saw the European struck again and fall down; and
then appellant and another struck the European, the appellant's blow being after the
European had died.

p19

2nd and 3rd statements: An admission of having speared

the European after he was dead and that the villagers had killed him.

Third Appellant:

1st statement: About one month before Christmas, 1963,

villagers who had been residing in UNIP villages in the area started to build Chapaula
Village; on the 23rd July, 1964, he was informed that messengers and a kapasu had been

296
refused admission to the village; on Friday, at l p.m., a deacon shouted 'Come here, come
here'; he and others ran to the deacon and found him with a villager who said that he had
been chased by police; the deacon then instructed the villagers to collect weapons and
fight the police; they found two policemen, a European and an African; the European was
stabbed in the back with a spear while running away; two other villagers stabbed him
with a spear and the appellant chopped him with an axe; and the fight was because the
villagers did not want to be removed from Chapaula Village.

2nd statement: He admitted that he and others had killed a

European police officer.

3rd statement: The European was already dead when he

axed him.

Fourth Appellant:

1st statement: He saw a European police officer and an

African constable firing guns, and he joined other villagers in running towards the former
with spears and axes; a woman axed the European in the shoulder and the group chased
him; the European tripped and he was then speared by two others who the European
killed with his revolver before dying.

2nd statement: Admitted that 'we killed an African

policeman but not the European'.

Fifth Appellant:

1st statement: He was told that a kapasu and messengers

had been chased away from the village; one of their leaders told the villagers that he did
not want messengers in the village and he (the leader) then posted guards; next day a
leader told them that a guard had been chased by the police; a couple of minutes later the
leader called the villagers to the eastern entrance; a European police officer then entered
the gate and was attacked with an axe by a ten-year-old boy; the European fired at the
boy and missed, and was then attacked by the boy's parents, one, the mother, hitting him
on his shoulder with an axe: the police then opened fire; the European was stabbed in the
back with a spear and ran off; the appellant was in a group which chased the European;
and the European fell to the ground and all the group, including the appellant, stabbed
him with their spears.

p20

2nd statement: Admitted striking the European with a

spear.

297
 3rd statement: The appellant repeated in substance the
account which he had given of the killing of the European in his first statement, with the
addition that the European was dead when he stabbed him and the police had killed four
of the villagers.

Sixth Appellant:

1st statement: He was told that, while he was away

collecting wood, messengers had been chased away from the village; at a meeting in the
village that night, a deacon said that if the messengers returned and wanted to fight, the
villagers would fight them; guards were then posted; on the following day, at about noon,
a guard reported that the police were coming; the villagers then put the children into the
houses, one of the villagers was thrown to the ground by a European police officer;
struggle ensued between the villager and the officer for the latter's revolver, the European
fired the revolver and wounded the villager; African police then opened fire and wounded
the villager's wife who was approaching the European officer with a panga, she hit the
European officer on the shoulder; more villagers were shot by the police; the European
started running away and was chased by a group of villagers, of whom the appellant was
one; one of the villagers speared the European in the back and he fell down; and the rest
of the group, including the appellant, speared the European and he died.

2nd statement: The appellant was in a group of persons

who killed the European. When this statement was read over to the appellant he said 'I
was not there, I was not in the group of people who killed the European. I admit that I
was in Chapaula Village.'

3rd statement: He did not see the man he was alleged to

have killed; he had gone to the village to buy food and returned on the 25th July, 1964;
and he did not know that the police had come to the village or that a European had been
killed on the previous day.

Before leaving the evidence given by the witnesses called by the State, it is necessary to
notice that the following evidence was elicited from some of them, and was not
contradicted: According to a senior police officer, it was not normal police practice to
chase a woman about a village, or to chase a person seen sitting in the bush; the purpose
of the chasing of the man and woman by the patrol on the day of the tragedy was not
known to members of the patrol who gave evidence; a statement made by the Prime
Minister on the 13th July, 1964, had been published to local government authorities and
the people; the statement, a full translation of which was placed before this court, said,
inter alia: 'Lenshina (Lumpa) Villages which are not authorised must be destroyed within
one week': It also said that

p21

298
the people in these villages must go back to their former villages, the Government
providing, if possible, a motor vehicle for their effects; on the 22nd July, 1964, that is two
days before the tragedy, Inspector Smith and his patrol visited Chapaula Village in order
to see if the instruction to move was being complied with; and the Inspector was then told
by the villagers that they would move if transport were made available to them. There
was a conflict of evidence as to whether Inspector Smith did or did not tell the villagers
that if they did not leave the village of their own accord they would be forced to leave.

All the appellants gave evidence at the trial but called no other witnesses. All deposed to
having moved to the village and stockaded it because they had been victims of violence
towards the Lumpas by members of UNIP, that is the political party known as the United
National Independence Party. The substance of the evidence of each was as follows:

First Appellant: At noon on the 24th July, he heard guns

being fired in the village and people shouting 'We are dying, this is war'; he ran towards
the shouting and saw police running away; he noticed that two of his friends were dead
and thought that there was war between the police and Lumpa members; he ran after the
police, carrying a spear, to where a European police officer had died; and as he was very
angry because a relative had been killed he stabbed the body of the dead European. In
cross-examination, he said the police would have killed all the villagers, if they had not
been chased by the latter.

Second Appellant: He gave similar evidence to that of the

first appellant. He also stated that he had run after the European and had come up to him
when he was already dead on the ground, and that he then speared him. This witness'
evidence contained several inconsistencies with his statements to the police, which he
explained in cross-examination was due to the police having forced him to tell lies. He
denied that the villagers had been instructed to make weapons.

Third Appellant: At 1 p.m. on the 24th July, he heard a

villager shouting to come as the police had come; before that he had heard a gunshot; he
ran with a spear and an axe, as he thought war had come; he saw policemen running away
and a dead European; he was angry because relatives had been killed and he struck the
dead European with an axe; and he thought that UNIP, being the Government with the
police in its hands, had caused the police to come to kill them. In cross-examination he
said that if he had told the police that the villagers had been instructed to collect weapons
and fight the police, it was because he was being tortured by them at the time.

p22

Fourth Appellant: He gave similar evidence to that of the

third appellant, including that he only saw the European's dead body, and he stabbed it
with a spear as the European had killed his relatives. In cross-examination, he stated that
he first saw the European while he was alive and firing his revolver and that he and other
villagers had chased the European, intending to kill him, as they were angry because of
the death of their relatives. He denied seeing a spear in the European's body when he first

299
saw him but admitted seeing a woman axe the European, after which the latter started to
run away.

Fifth Appellant: He also gave similar evidence to that of the

third appellant, including having stabbed the European after he was dead because he had
killed relatives, and to thinking that the police were working with UNIP and had come to
kill the villagers. In cross-examination he denied that any precautions had been taken
before the police came, alleging that his statement to the contrary to the police was not
true and it had been forced from him.

Sixth Appellant: He stated that he saw the European being

chased to a stream, that he went to the stream where he saw the European's dead body
lying on the ground, and that he stabbed it as he was angry over the death of relatives. He
also said that he thought the police had come to kill the villagers because they were hated
by UNIP and that all the Lumpas would have been killed if the European had not been
killed.

The learned trial judge accepted the evidence of the witnesses or the prosecution as to the
circumstances in which Inspector Smith was killed, and rejected the evidence of the
appellants, who impressed him most unfavourably, and of whose evidence, he said, he
did not believe a word. On the evidence which he accepted he found the following:

(i) That Inspector Smith was performing a lawful act when he

went to Chapaula Village on the 24th July, 1964, to carry out an investigation.
(ii) That on the afternoon of that day a number of persons'
including the appellants, formed a common intention to prosecute in conjunction with
each other the purpose of attacking Inspector Smith and his patrol with spears and axes.
(iii) That the common purpose was unlawful.
(iv) That the prosecution of that purpose was by itself such that
the death of or grievous harm to Inspector Smith was a probable consequence and,
indeed, the inevitable consequence.
(v) That each of the appellants prosecuted the common purpose
as a principal in the first degree.

p23

(vi) That the appellants and their colleagues had no legal

justification or excuse for attacking the police, since the latter had gone to the village for
a lawful purpose, and that they did not act under provocation.
(vii) That, accordingly, the appellants were guilty of murder by
reason of section 22 of the Penal Code.

In the course of reaching his conclusions the learned trial judge rejected an argument in
favour of the appellants that they had acted under a mistake of fact within the meaning of
section 11 of the Penal Code. He dealt with the argument in these words:

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 " I have given my most careful consideration to this line of
defence and have taken the view that in the circumstances of the case the expression "an
ordinary person" shall mean an ordinary person of the community to which the accused
belonged and I am satisfied that the accused cannot honestly and reasonably have
believed that the police party, led by Inspector Smith, dressed as they were in regulation
police uniforms, had come to Chapaula Village for the purpose of attacking them and
destroying their village."

The grounds upon which the appellants have appealed to this Court are substantially that
the learned trial judge erred in rejecting the defence of mistake under section 11 of the
Penal Code and in refusing to admit evidence relevant to that defence. The alleged
mistake on the part of the appellants was that they and the other villagers violently
attacked the police in the belief that the police had come to their village for the purpose
of expelling them forcibly in execution of the Government instruction, referred to above,
and of destroying them in accordance with the policy of Government and the political
party from which the members of Government were drawn. The argument, based on the
alleged mistake, was that the belief of the villagers under which they forcibly resisted the
police rendered their resistance lawful, so that their common purpose was not unlawful
and the killing of Inspector Smith was a justifiable or excusable homicide, or, if the
homicide were not justifiable or excusable, it was the result only of excessive force
having been used, and it was manslaughter only on that account. The second appellant
also appealed on the ground that his first statement to the police should have been
excluded from evidence by the trial judge in the exercise of his discretion. The learned
trial judge's disbelief of the appellants' evidence was also made a ground of appeal.

As indicated from the recital of facts, some evidence relevant to the issue of mistaken
belief was admitted in evidence, whether deliberately or inadvertently does not appear.
As will appear later, that evidence was sufficient, in my judgment, to enable a proper
determination of the issue to be made. Consequently, it seems to me to be necessary to
notice only two exclusions from evidence which were made grounds of appeal.

p24

The first is that the learned trial judge refused to admit evidence as to the conduct of the
police when they returned to the village, on the day following the tragedy, in order to
recover Inspector Smith's body. As we were informed, this evidence would have shown
that the police approach to the village was by way of attack and indiscriminate slaughter,
and it was argued that it was relevant as supporting the appellants' belief that the police
were the aggressors on the fatal day.

In my judgment, the learned trial judge rightly rejected that evidence. It was irrelevant as
the events to which it related could not have had any influence upon the appellants' state
of mind at the time of anterior events.

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[1] The second rejection was of evidence by the kapasu as to the orders which were given
to the Boma messengers when they were despatched to the village. That evidence was
rejected as hearsay. In my judgment, it was clearly not hearsay. If A delivers a chattel to
B, both A and B can depose to the fact of delivery and receipt of the chattel, as can a third
person who was present and witnessed the delivery and receipt. What difference is there
really between such acts and the giving of a verbal order by a superior to a subordinate?
Insofar as the order contains allegations of fact, the evidence as to the giving and receipt
of the order and its terms is no more than hearsay as to the truth of the allegations and
clearly is not admissible as to them. But I can see no reason why evidence by the
recipient, or by a third party who was present and heard the order given, is not admissible
as to the facts of the giving and terms of the order when those facts are relevant to a
matter in issue. So far as my experience goes, such evidence is continually admitted
before courts-martial. The point seems to me to be clearly covered by the decisions of the
Privy Council in Subramaniam v Public Prosecutor, 1956, 1 W.L.R. 965 and the Court of
Criminal Appeal in England in R. v Willis, 1960, 1 All E.R. 331. In the former case, the
accused was charged with possession of firearms without lawful excuse, and evidence
was brought on his behalf, in support of a plea of duress, of what had been said by
terrorists. The trial judge had held that the evidence was not evidence but hearsay. In
giving the opinion of the Privy Council that the appeal should be allowed, Mr Da Silva
said:

" Evidence of a statement made to a witness by a person who

is not himself called as a witness may or may not be hearsay. It is hearsay and
inadmissible when the object of the evidence is to establish the truth of what is contained
in the statement. It is not hearsay and is admissible when it is proposed to establish by the
evidence, not the truth of the statement, but the fact that it was made."

That passage was quoted with approval and applied by Lord Parker, C.J., when giving
judgment for the Court of Criminal Appeal in R. v Willis supra.

Nonetheless, I am of the opinion that the rejection of the evidence was right. The ground
of that opinion is that the evidence was

p25

irrelevant, as what was relevant was not the instruction which the Boma messengers
received but what they told the villagers.

The ground of appeal relating to the learned trial judge's reception of the second
appellant's first statement to the police also requires comment. That statement was made,
partly under caution after the appellant had been some days in police custody for his own
protection. Its admission was objected to on the ground that it had not been made
voluntarily, in that it had been extracted by threats and violence. After a trial within a
trial, the learned trial judge found that it had not been made as alleged. In the course of
giving his reasons for so holding, he stated erroneously that the onus was on the accused
to prove that the statement had not been made voluntarily. Later, however, he corrected

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that error by deciding that he was satisfied beyond reasonable doubt that the statement
had been made voluntarily. Having regard to the circumstances here, there is no ground
for challenging the learned judge's final conclusion that the statement was admissible,
once he was satisfied that the alleged threats and violence had not been used.

As stated, the ground of appeal was that the learned trial judge wrongly failed to exercise
his discretion by excluding it. I can see no substance in that. [2] While a judge has a
discretion to exclude admissible evidence, it is a discretion which should only be
exercised when it appears clearly that the evidence in itself or by reason of the
circumstances in which it was obtained has an unfair prejudicial tendency against the
accused out of all proportion to its probative value. Here the only circumstances relied
upon as rendering the statement in question unfair is that it was taken or obtained after
the second appellant had been in custody. It was not suggested by the evidence, however,
that he was improperly questioned or otherwise improperly treated within the period of
detention, apart from the use of violence - and the use of violence was disproved.
Moreover, the custody was apparently with the appellant's consent and for his own
protection.

The common grounds of appeal call for a consideration of both section 22 of the Penal
Code, by virtue of which the appellants were convicted, and section 11 of the Penal Code,
under which the defence of mistake was raised.

Section 22 of the Penal Code is as follows:

" When two or more persons form a common intention to

prosecute an unlawful purpose in conjunction with one another, and in the prosecution of
such purpose an offence is committed of such a nature that its commission was a
probable consequence of the prosecution of such purpose, each of them is deemed to
have committed the offence."

To bring an appellant within that section as being guilty of murder, the following facts
must have been proved against him beyond reasonable doubt:

p26

(i) That two or more persons, of whom the appellant was one
each formed an intention to prosecute a common purpose in conjunction with the other or
others.
(ii) That the common purpose was unlawful.
(iii) That the parties, or some of them, including the appellant,
commenced or joined in the prosecution of the common purpose.
(iv) That, in the course of prosecuting the common purpose, one
or more of the participants murdered a person, that is:

303
 (a) in terms of section 21 of the Penal Code, caused, or
participated in causing, the death of a person;
(b) by a voluntary act which was done without legal
justification or excuse, with malice aforethought as defined by section 180 of the Penal
Code, and without provocation as defined in sections 182 and 183 of the Penal Code.

(v) That the commission of the murder was a probable

consequence of the prosecution of the common purpose. [3] It would seem that a
probable consequence is that which a person of average competence and knowledge
might be expected to foresee as likely to follow upon the prosecution of the particular
purpose, though it may be that the particular consequence was not intended or foreseen
by the appellant. (An adaptation of the dictum of Starke, J., in Brennan v The King, 1936,
55 C.L.R. 253 H.C. at 261.)

Two points affecting the application of the section need to be noted:

(i) [4] The formation of the common purpose does not have to be by express agreement
or otherwise premeditated; it is sufficient if two or more persons join together in the
prosecution of a purpose which is common to him and the other or others, and each does
so with the intention of participating in that prosecution with the other or others.
(ii) It is the offence which was actually committed in the
course of prosecuting the common purpose which must be a probable consequence of the
prosecution of the common purpose. If a different offence to that committed was a
probable consequence an accused cannot be convicted under the section. Thus, if the
offence actually committed was murder but the offence which was a probable
consequence was manslaughter, the section does not apply. (Tenson Simulona and others
v Regina, N.R.C.A. Cases 105, 106, 107 of 1964; Brennan v The

p27

King, sup. at 264 per Dixon and Evatt, JJ.) Stated another
way, if the offence charged is murder and that offence is proved to have been committed
but it was not a probable consequence of the common purpose, the section does not
operate to enable any one to be convicted of any offence, though, of course, those proved
to be guilty of murder or manslaughter by reason of section 21 of the Penal Code may be
convicted. If on the other hand, the offence proved to have been committed on the charge
of murder was manslaughter, and manslaughter was probable consequence of the
unlawful common purpose, all participants in the unlawful common purpose are liable to
conviction of manslaughter under section 22.

Pausing here, it is to be noted that, subject to consideration of the grounds of appeal

relating to the learned trial judge's disbelief of the appellant's evidence and to mistake,
and of his rejection of provocation, the convictions cannot be impeached. The only
conclusions to be drawn from the evidence relied upon by the prosecution as to the
circumstances in which Inspector Smith met his death are: All the appellants joined in the
prosecution of a common purpose to attack and pursue to his death Inspector Smith:

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Inspector Smith had come with his patrol for a lawful purpose and, accordingly, the
common purpose of the appellants was unlawful: the homicide of Inspector Smith was
murder: and that murder was a probable consequence of the unlawful purpose.

The ground of appeal relating to the learned trial judge's disbelief of the appellants'
evidence was that he was wrong in not believing a word of that evidence, and that,
consequently, he did not give it proper consideration, at least in respect of the first, third,
fourth and fifth appellants. Those appellants had deposed, in their evidence in chief, that
they did not join in the pursuit of Inspector Smith but only came upon him when he was
dead. Unless that evidence was properly disbelieved, none of the four appellants had been
proved, it was suggested, to have joined the common purpose until after the Inspector's
death, and, consequently, they were not caught by section 22 of the Penal Code.

The learned trial judge's disbelief of the appellants' evidence was obviously stated in far
too sweeping terms. That evidence, inter alia, referred to friction having existed between
members of the Lumpa sect and members of the political party known as UNIP. In that
respect it at least was true, as the existence of such friction is so notorious as to be a
matter of judicial knowledge.

Nonetheless, this Court must assume that the learned trial judge directed his sweeping
and, on their face, inaccurate remarks to the evidence of the appellants in respect of the
stages of their participation in the actual attack on and pursuit of the police, and not to
matters antecedent to any preparation which may have been made for the attack. I am
confirmed in that assumption by the learned trial judge's obvious concern not to allow the
trial to become an inquiry into the relationship between the Lumpa sect and UNIP.

p28

Apart from that, it seems to me apparent from the record that the appellants' evidence as
to the stages actual participation in the attack on and pursuit of the police was false. Each
admitted to the police that he had joined in the pursuit of Inspector Smith before he died
and most repeated their admissions as to that in cross-examination.

It follows that the question whether a joining in the continuation of the common purpose
by an appellant only after Inspector Smith's death would have attached responsibility for
that death by reason of section 22 does not arise. As I have indicated, the evidence from
the State's witnesses clearly manifested that all the appellants had a common purpose to
pursue Inspector Smith, as well as other police, to their death, and that they joined in the
prosecution of that common purpose. Consequently, whether an appellant actually struck
Inspector Smith or did not strike him until death had already occurred, is irrelevant to his
responsibility under section 22 for that death, and his responsibility under that section
depends entirely on whether the common purpose was unlawful and if it were unlawful,
whether the homicide was in circumstances amounting to either manslaughter or murder.

I turn now to the defence of mistake.

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Section 11 of the Penal Code is as follows:

" A person who does or omits to do an act under the 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 relating to the subject."

It was not suggested in argument that the operation of the rule was excluded in relation to
homicide by implication from the sections of the Penal Code relating to the subject and,
in my judgment, there is nothing in those sections rendering such an implication
necessary.

[5] The rule expressed in section 11 follows closely the language in which a similar rule
under the common law has been expressed by eminent judges. If the authorities on the
common law rule are taken at; their face value, they indicate that it applies as a defence in
the strict sense, that is by way of confession and avoidance, with the result that the onus
of establishing it, on the preponderance of probabilities, is upon the accused. (See R v
Tolson, 1889, 23 Q.B. D. 168, 1886-90, All E.R. Rep. 26; R v Malcolm Mark and others,
1961, Criminal Law Review, 173; R v King, 1963, 3 All E.R. 561, at 563 per Lord
Parker, C.J.; Thomas v The King, 1937, 59 C.L.R. 288 H.C.; R v Bonnor 1957, V.R 227,
noted 31 A.L.J. 468; The Queen v Reynhandt 1962, 107 C.L.R. 381, H.C. at 389, 396,
399.) Those authorities all relate, however, to statutory offences, such as bigamy and
assaulting a police officer in the execution of his duty, which had been created in terms
which were regarded as not making the form of mens rea covered by the alleged mistake
an element of the offence,

p29

and the statutory provisions were construed as permitting mistake to be proved as a

defence. Full mens rea however, is a constituent element of both the offence of
manslaughter and the offence of murder by reason that the absence of legal justification
or excuse by way of self-defence is an element of both crimes, and the existence of
malice aforethought is an element of murder. Consequently, when the issue of mistake of
fact on the part of an accused is raised on a charge of either crime, it is not really raised
by way of confession and avoidance but by way of a traverse of the implicit allegations in
the charge that legal justification or excuse did not, and malice aforethought did exist. In
such cases, therefore. Woolmington's case, 1935, A.C. 426 applies, so that, while the
accused who relies on mistake of fact as a defence has the burden of adducing or pointing
to evidence as raising the issue, the prosecution, once the issue is raised, has the ultimate
burden of proving beyond reasonable doubt that there as no mistake or, if there was, it
was not reasonable. (Cf. R v Mkize, 1961, 3 S.A. 28; Cross on Evidence, 2nd Ed. at 7,

306
note 1, Turner, Russell on Crime, 11th Ed. Vol. 1, at 278; Glanville Williams, Criminal
Law, 2nd. Ed. at 910.) Even in the case of such statutory offences as bigamy and
assaulting a police officer in the execution of his duty, the onus in respect of a defence of
mistake may have to be reconsidered with regard to the Privy Council's expressed distaste
for implying mens rea into a statute only as permitting a defence which has to be
established in favour of the accused instead of as an element of the offence which has to
be proved against him. (See Lim Chin Aik v Regina, 1963, 1 All E.R. 223, at 226. That
expressed distaste, incidentally, supports the conclusion of Dixon, C.J., in his dissenting
judgment in R v Reynhandt, supra, that knowledge that a police officer was such is an
element of the offence of assaulting a police officer in the execution of his duty.)

It follows, in my judgment, that, if there were evidence before the Court that a particular
appellant may have acted under a reasonable but mistaken belief as to the existence of
facts which, had they existed, would have entitled him to an acquittal or to a finding of
guilty of manslaughter only, that defence could only be rejected in respect of him if the
evidence established beyond reasonable doubt one or both of the following negatives:

(a) that he did not act under such a belief;

(b) that, if he did act under such a belief, the belief was not
reasonable.

In that statement, I have omitted reference to the word 'honestly'. It appears to me that the
word adds nothing to the section. Either a belief is held or it is not held at any relevant
time. If a person later falsely claims to have held a particular belief, his claim is false, and
may be dishonest, but the falsity does not affect the fact that his belief was non-existent at
the relevant time.

[6] The precise meaning of 'reasonable' in the Penal Code in relation to a belief or
reaction is a question of some difficulty. Is it to be determined by the standards or beliefs
and reactions of the ordinary man of the community to which the believer or actor
belongs,

p30

or by some other test? It is significant that in section 183 of the Penal Code the
Legislature specifically referred to the former standard without use of the word
'reasonable', when it intended that standard to be applied in determining the existence of
provocation. The Federal Supreme Court (Tredgold, C.J., Lewey, F.J., and Clayden, F.J.)
took into consideration a similar feature in the corresponding section ill the Nyasaland
Penal Code Allen deciding in Attorney-General for Nyasaland v Jackson, 1957, R. & N.
443, that 'reasonable' as used expressly or impliedly in that Code meant something else
than reasonable by reference to the standards of the accused's community. According to
Tredgold, C.J., 'reasonable' is to be determined by the standards of the ordinary
reasonable man which, in England, would be the standards of the ordinary man in the
street. Who is the ordinary man in the street in this part of the world the learned Chief
Justice did not say, but he made it plain that such a man is not the ordinary man in a

307
relatively primitive village. According to Clayden, F.J., 'reasonable' is to be determined
by the standards of the ordinary Englishman, as that is what the word meant at common
law which was the basic law of Nyasaland, as it is here. Both judges held, on their
respective bases, that a belief in witchcraft was not one which the law could recognise as
reasonable. Lewey, F.J., agreed that a belief in witchcraft was unreasonable but on the
ground that it was not capable of recognition in law as being reasonable. The actual
decision in Jackson's case was followed by the Northern Rhodesia Court of Appeal,
constituted by the same members as is this Court for the present case, in Muyakwi Paul v
The Queen (N.RC.A. Case No. 2 of 1964). On the other hand, in Greyson v Regina 1961,
R & N 337, the Federal Supreme Court took a different view of the meaning of
'reasonable' as used in a subsection of the Nyasaland Penal Code which is identical with
subsection (2) of section 182 of the Zambia Penal Code. The subsections provide that
force used under provocation must bear a reasonable relationship to the provocation
received for the provocation to reduce murder to manslaughter. The Federal Supreme
Court held, in effect, that 'reasonable', in that context, meant 'according to the reactions of
an ordinary member of the accused's community', thereby equating the word with the
express provision in the succeeding section of each code for determining whether
provocation itself had occurred.

In my judgment, Greyson's case should not be followed on this point by this Court. I say
that notwithstanding that I had followed it at first instance recently. The significance of
the different wording in sections 182 (2) and 183 of the Penal Code appears to me to be
too marked to be disregarded. With regard to Jackson's case and Paul's case, while I agree
that a belief in witchcraft cannot be regarded as a reasonable belief by the law of a
modern country, I think that the basis upon which Claydon, F.J., placed his conclusion in
Jackson's case is untenable.

The word 'reasonable', which is dear to the common and statute law of England, means
primarily 'according to reason' or 'which is supported by reason'. It may be used either
subjectively, that is with reference to the reason of the actor, or objectively, with
reference to

p31

the reason of some one other than the actor. It is in the latter sense that the word is
usually used in English law: the reason with which a belief or act must accord is the
reason of the law itself, and not of the particular believer or actor, though of course the
two reasons may coincide. (See the analysis on the subject in the dissenting judgment
Lord Atkin in Liversidge v Anderson, 1941, 3 All E.R. 338, at 530 et seq.: an analysis
which is not affected by reason that it is in a dissenting judgment, particularly as Lord
Atkin's dissent was really to the proposition that the word 'reasonable' was not necessarily
used in its objective sense in emergency legislation.) A belief or act accords with the
reason of the law if it is in accordance with a positive rule of law. Thus, an act done in
accordance with a positive rule of law can not become unreasonable by being done from
an improper motive. (Cf. Hardie and Lane Ltd v Chilton, 1928, 2 K.B. 306 with R v
Denyer, 1926, 2 K.B. 258.) On the other hand, a belief or act which is contrary to a

308
positive rule of law cannot be reasonable. When assistance cannot be derived from a
positive rule of law, the reason of the law is that a belief or act, in order to be reasonable
or acceptable, must be one which a person of average knowledge, perception, judgment
and self-control would have held or done in the particular circumstances.

It follows that whether a belief or act was reasonable is primarily a question of law: it
being for the judge, as such, to determine whether it is answered by reference to any
positive rule of law, and if it is not, whether there is evidence of such circumstances as
render it likely that the average person mentioned would have held the belief or done the
act. If the judge answers the last question in the affirmative it will be for the jury, or
himself when he is also the tribunal of fact, to decide whether the average person would
actually have held the belief or done the act. The division of the test of the average man
into a question of law and a question of fact may not be of great practical importance
when both have to be answered by judge who also has to act as the tribunal of fact, but
recognition of the division conduces, I think, to clarity of thought on the subject. It shows
that the first word - and the only word if the answer is in the negative - on the question
whether a belief or act was reasonable rests with the law, that is, the judge, by reason that
the latter has to decide whether the alleged belief or act is capable of being regarded, both
in itself and on the evidence, as that of the average person.

The test of reasonableness according to the standards or norms of the average person is
the one which has to be applied more frequently as it is rarely that a positive rule of law
can be invoked as the test. In applying it in England, no great difficulty presents itself.
The judge naturally tries to put himself into the position of the reasonable or average
Englishman and asks himself whether such a person was likely to hold the particular
belief or do the particular act in the alleged circumstances, with the proviso that if the
particular belief or act appears to outrage his sense of reason he will reject it out of hand
as contrary to law, and not leave the reasonableness of it to be determined as a question
of fact. Accordingly, a modern English judge would have no difficulty in deciding, as a

p32

question of law, that a belief in witchcraft was in itself unreasonable, despite the contrary
conclusion of his seventeenth century predecessors, including the great Hale, and would
direct the jury accordingly. (As to Hale's belief in witches and their powers, see Stephen,
History of Criminal Law, Vol. 1, at 380.)

The common law, however, does not partake of that insularity which, rightly or wrongly,
has been attributed so often to English-men. Its criterion is really not the average
Englishman but the average member of a modern society who is to be regarded, so far as
his knowledge, beliefs and share of the imperfections of human nature will permit, as
acting in accordance with reason, including with self-control. This becomes apparent
when the application of the criterion to British settled colonies is considered. The
colonists of America, Canada, Australia and New Zealand took with them from England
the concept of the 'reasonable man' as part of their heritage of the common law. They did

309
not apply that concept, consciously or unconsciously, with regard to the reasonable or
average Englishman but with regard to the reasonable or average member of their colony
who would be, in fact, an amalgam of English, Irish, Scots and Welsh; and they have
continued so to apply it with the result that, in those countries, the concept has come to be
applied with reference to the reasonable or average American, Canadian, Australian or
New Zealander, I accordingly feel bound to reject the basis upon which Clayden, J.,
placed his decision in Jackson's case. That basis is a confusion of the common law rule
itself with the practical result of its application in the country where the common law
originated.

That rejection does not warrant, however, the acceptance of the standard or norms of the
average member of the particular part or section of a community to which an individual
belongs as the test of the reasonableness of the individual's belief or other reaction to
particular circumstances. Such an acceptance would not only open the door to the
acceptance of beliefs, such as in witchcraft, which in the light of modern informed
opinion are untenable, but it would lead to confusion in the administration of the law, and
particularly of the criminal law. It would also be to ignore the distinction already referred
to, in connection with Jackson's case, as having been made in the Penal Code by the sole
express reference to the standards of the ordinary member of the accused's community in
respect of provocation. It would be also to ignore that the common law concept applies to
the community at large and not to sub-communities. Thus, the reasonableness of the
belief or other reaction of a person accessed of a crime is not to be determined by the
standards or reactions of the average member of the criminal class in the community.
Further, if the standards of a particular primitive community were to be applied in a
particular case it could result in what to the members of that community is reasonable or
unreasonable being supplied in that case, notwithstanding that it may be obviously
unreasonable or reasonable to more educated and informed minds.

p33

It is true that the common law does admit of an apparent exception to not recognising the
standards or norms of an individual's part or section of the community in its test of what
is reasonable. That apparent exception is that whether a belief or act of a person with
special qualifications or training was a reasonable application of his qualifications or
training is to be determined according to the standards of the average person with similar
qualifications or training. The exception, however, is probably more apparent than real
and is certainly of a very limited scope. In the first place, it only applies to persons who
may be expected to have higher standards than average in some particular sphere of
human activity. In the second place, it only applies to such persons when the application
of their special qualifications or training is in question, and not to them in the everyday
affairs of life - in respect of the latter, they continue to be governed by the standards or
norms of the average person in a modern society.

The conclusion to be drawn from those observations is this, I think: Whether a belief or
act occurring in the course of the everyday affairs of life is or is not reasonable depends,
for the purpose of the Penal Code, and apart from any positive rule of law governing the

310
question, upon whether or not it was a belief or reaction which was likely to be held or
suffered in the circumstances by a member of a modern society who has average modern
knowledge, average perception, average intelligence, average judgment and average self-
control, and who is to be presumed to be guided, so far as the imperfections of human
nature permit, by reason in the light of such modern knowledge as has extended beyond
the realm of the experts into the realm of judicial knowledge. Support for that conclusion
is to be found in R. v Mbombella, 1933, App. D. 269, 14 E. & E. Dig. 52 Case No. 141
and R. v Mkize, sup. at 34. In the former case it was said that neither the race, the
idiosyncrasies, the superstitions, nor the intelligence of the person accused enters into the
question whether or not a mistaken belief as to fact was reasonable. Support is also to be
found in the West African case of R v Gadam, 14 W.A.C.A. 44, where, according to
Hedges, Introduction to the Criminal Law of Nigeria, at 9, the West Africa Court of
Appeal held that it would be a dangerous precedent to recognise a belief in witchcraft as
reasonable notwithstanding the local prevalence of such a belief.

[7] It is on the basis of the conclusion which I have stated that I think that the actual
decisions in Jackson's case and Paul's case were right: a belief in witchcraft is not one
which the law of a modern society can recognise as being likely to be held by an average
member of such society.

It remains to add, with respect to the learned trial judge, that, in my opinion, he erred - in
favour of the appellants - when he directed himself that the reasonableness of a belief had
to be determined with regard to the standards of the average member of their community.

In applying the foregoing to these appeals, it will be convenient first to consider whether
the facts in which the appellants are alleged to have believed would have entitled them to
a different

p34

verdict had those facts actually existed. Those facts are that the police had come to the
village with the intention of expelling - forcibly, if necessary - the villagers from, and
destroying, their village order to give effect to the order or threat, relating to the
evacuation and destruction of Lumpa villages, which was implicit in the Government
declaration mentioned earlier.

If the police had come for such a purpose, they would have been acting unlawfully. On
the evidence, the Government order or threat was illegal, as was conceded by the learned
State Advocate in answer to a question by me. It was not until three days after the tragedy
that the Government brought into operation emergency powers under the Preservation of
Public Security Ordinance (Cap. 265) - see G.N. 374, 375, 376 of 1964. Those powers
may or may not have covered the order or its execution had either been subsequent to
them, but no evidence of the existence of any suggested statutory authority for the issue
of the order or its enforcement prior to the coming into operation of the emergency
powers was adduced. Neither was any evidence adduced that Inspector Smith had
received orders from his superiors to enforce the Government order or violently to attack

311
the villagers. Consequently, on the assumption that the police patrol came to the village
for the purpose of forcibly enforcing the Government order, the State cannot invoke the
rule that police subordinates are bound to obey such orders of their superiors as are not
manifestly unlawful, even if that rule were applicable to such a case as this.

The criminal liability of a private citizen who kills an officer of the law while the latter is
doing an unlawful act is governed by the rules relating to self-defence. According to
those rules, a person is entitled to use force in order to prevent another from committing
treason, a violent felony, or an assault or trespass not amounting to treason or felony,
provided that the force used is no greater in degree than is reasonably necessary to
prevent the commission of the unlawful act. If the unlawful actor is killed as a result of a
use of force in those circumstances, the homicide is justifiable if his unlawful act was
treason or a violent felony, and is excusable if his unlawful act was an assault or trespass
not amounting to treason or a violent felony. The distinction between justifiable and
excusable homicide is historical and only of particular importance in respect of the duty
to retreat, to which reference will be made later. A person is not criminally liable for
either justifiable and excusable homicide. (See Halsbury, 3rd ed. vol. 10, pages 721-2.)

If, on the trial of a charge of which self-defence may afford an answer, evidence is
adduced suggesting that the accused may have acted in the circumstances mentioned as
constituting self-defence, he must be deemed so to have acted unless the contrary is
proved beyond reasonable doubt. (Chan Kau v Regina, 1955, 1 All E.R. 266; Regina v
Lobell, 1957, 1 All E.R. 734.) Hence, when the evidence raises the issue of self-defence
on a trial for murder or manslaughter, at least one of the following negatives must be
established beyond reasonable doubt against the accused in order to resolve the issue in
favour of the prosecution:

p35

(i) That the act which caused the deceased's death was not
done while he was committing or attempting to commit a treason or a violent felony or an
assault or trespass not amounting to treason or violent felony.
(ii) That the act which caused death was not done by the
accused for the purpose of preventing the commission of such an unlawful act as is
mentioned in (i).
(iii) the act which caused death involved the use of force in
excess of what was reasonably necessary to prevent the commission of such an unlawful
act as is mentioned in (i).

If self-defence is negatived in relation to a charge of murder in respect of (iii), but not of

(i) or (ii) as well, the accused is not guilty of murder but is guilty of manslaughter; the
reason being that the intent to act in self-defence, which is inconsistent with having acted
with malice aforethought, is not negatived. (Jackson v Regina, 1962, R. & N. 157, F.S.C.,
following Howe v The Queen, 1958, 100, C.L.R. 448, H.C.)

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Whether the degree of force was reasonably necessary has to be determined by the same
criteria of reasonableness as are applicable to beliefs; that is, subject to such positive
rules of law as are applicable, according to the likely reaction of an average member of a
modern society in the suggested circumstances. The positive rules of law which govern
the question may be stated thus:

(a) It is not reasonably necessary, in order to avoid an

unlawful arrest by a known officer of the law, for a private citizen to use such force
against the officer as to cause his death. An officer of the law is vested with a peculiar
protection by the law and the reasonable course for a private citizen to adopt when
threatened by an unlawful arrest by an officer of the law, who he knows to be such, is to
submit to the arrest and seek redress from the law itself instead of resorting to violence. If
violence is used in resisting the arrest, and the officer of the law is killed as the result, the
user of the violence is guilty of manslaughter on the principle applied in Jackson v
Regina, 1962, R. & N.157. (See Christie v Leachinsky, 1947, 1 All E.R. 567, at 578-80
per Lord du Parcq; Halsbury, 3rd ed. vol. 10, at 708, para. 1359.)
(b) The peculiar protection which the law affords to a known
officer of the law who is attempting to effect an unlawful arrest in circumstances not
amounting to a violent felony does not extend to such an officer committing a violent
felony. In the latter case, the officer of the law stands on the same footing as a private
citizen, and, if he is killed in the course of resistance to a violent felony, the homicide
may be found by the tribunal of fact to be justifiable. (See Stephen, Digest of Criminal
Law, 8th ed. Article 309; Halsbury, 3rd ed. vol. 10, at 721; Stephen, History of the
Criminal Law, vol. 1, at 493-4.)

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(c) A person is bound to retreat before resorting to the use of

force, in order to avoid an assault or trespass not amounting to a treason or violent felony,
if the opportunity to retreat becomes available, but he is not bound so to do, and he is
entitled to stand his ground, in the case of a treasonable act or a violent felony. (Halsbury,
3rd ed. vol. 10, at 722, para. 1384.)

Here, had any appellant joined in the common purpose of forcibly resisting the police
because the latter had come, or he reasonably believed that they had come, to expel him
and his co-villagers forcibly from their village and to destroy the village, the common
purpose, in relation to him, would have been lawful as the actions of the police would
have been violently felonious. Further, the homicide of Inspector Smith would have been,
in respect of the appellants, justifiable.

The evidence as to the appellants' beliefs that they were being, or were about to be,
subject to a violent attack by the police, consisted of their own evidence. None of them
deposed expressly to having acted under the belief that the police had come to enforce the
Government order for evacuation of Lumpa villages but each deposed to having acted on
the belief that the police had come to make 'war' upon them. None deposed that the

313
resistance had been planned, and some denied that such had been done, and all indicated
that their beliefs were a reaction from the noise of gunfire, the sight of dead relatives who
had obviously been shot by the police and a belief that the UNIP Government was using
the police in order to destroy them.

In their statements, two appellants, the first and fourth, did not refer to having acted upon
any belief as to the purpose of the police, while the others indicated that resistance had
been organised in the event of the police coming to investigate the chasing away of the
kapasu and the messengers. The third appellant also said that the fight was because the
villagers did not want to leave their village; a statement indicative that the villagers were
influenced by the Government declaration. Each statement is not evidence for or against
anyone but its maker, of course.

The belief to which each of the appellants deposed as haying acted upon, that the police
had returned to the village for the purpose of making 'war' upon them, is substantially the
same as the belief which was relied upon by their counsel as supporting the defence of
mistake, but expressed less precisely. Before a proper finding that any appellant did not
act on the belief could be made, not only did the contradictions or apparent contradictions
between his evidence and his statements to the police and his manner and demeanour
when giving evidence have to be considered, but also the possibility that he did act on the
belief as presented by the following:

(i) The fact that the Government declaration with its order for
evacuation and destruction of villages had been published to villagers.

p37

(ii) The Act that Inspector Smith and his patrol had visited
Chapaula Village only two days before to see if the village was being evacuated.
(iii) The fact that there had been violent friction for some time
between the Lumpa sect and UNIP - a fact which is so notorious as to be a matter of
judicial knowledge.
(iv) The fact that the Government has been formed from UNIP - a
fact which is also so notorious as to be a matter of judicial knowledge.
(v) The evidence of the appellants that the friction between the
Lumpa sect and UNIP had originated with the latter; an indication, at least, that the
members of the Lumpa sect believed, rightly or wrongly, that to be the case.
(vi) The tendency for ordinary villagers to regard the police as the
agents both of Government and the political party from which Government is drawn.
(vii) The facts that armed police, on approaching the village, had
adopted, to the later knowledge of the villagers, the course of chasing a man into the
bush, and the course of chasing a woman into the village; courses which, on the evidence,
were unusual.
(viii) The failure of the police to re-group before entering the
village, as appears from the fact that some ran into it.

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(ix) The likelihood of items (i) to (vi) creating in relatively
primitive minds a sense of persecution on which items (vii) and (viii) would operate to
create a belief that the police had come as instruments of further persecution by enforcing
the Government order for the evacuation of Lumpa villages.
(x) The fact that primitive minds when giving evidence often
varnish the truth with lies or conceal it in the belief that lies will be more elective, so that
care has to be taken in rejecting the possibility of some fact, be it the holding of belief or
something else, which the evidence indicates may have existed but to which they have
not deposed.

Whether the learned judge considered all those matters before rejecting the defence of
mistake of fact does not appear from his judgment. It may well be that he did not. But
even if he had not done so, I think that his conclusion that none of the appellants could
have acted under a reasonable mistake was correct. Assuming that the appellants did
believe that the police had come to attack them and forcibly expel them from their village
- and on the considerations which I have itemised, their primitive minds may well have
led them to such a belief - the belief cannot be regarded as having a reasonable basis
according to the test of reasonableness expressed earlier. While the average member of a
modern society would recognise that the

p38

police have to act only on such orders of Government as are lawful, it is unlikely that he
would have assumed, in else conditions then prevailing, that the police had been ordered
to launch violent attacks against villages, or so to act without first giving the villagers an
opportunity to test the validity of their orders, or were acting in the role of persecuting
agents of a political faction. Neither is it likely that an average member of a modern
society would assume that the chasing of a woman by the police into the village - unusual
though it may be - was a prelude to a violent attack upon the village.

It follows, in my judgment, that the learned trial judge was right in his conclusion that the
defence of mistake failed.

There remains, however, one other question which, although it was not raised by the
appellants, necessarily arises out of the foregoing considerations. That question is
whether the homicide of Inspector Smith was not murder but manslaughter by reason that
it was provoked by the police chasing the woman into the village. That question has to be
considered with reference to whether the chasing of the woman was an unlawful act -
there being no evidence that it was lawful - which was likely to provoke an ordinary
member of the appellants' community to stab Inspector Smith. (See Penal Code, section
183.) The learned trial judge found that the act of the police did not amount to
provocation but he does not appear to have considered the question with reference to the
likely reactions of an ordinary villager to the chasing of the woman.

Nonetheless, in my judgment, the chasing of the woman was not sufficient provocation in
law to reduce the homicide to manslaughter. Section 182 (2) of the Penal Code requires

315
the court to be satisfied that the act which causes death bears a reasonable relationship to
the provocation. [8] As I have indicated, while provocation itself must be determined by
reference to the reactions of an ordinary or average member of the accused's community,
'the reasonable relationship' of the force used to the provocation must be determined by
reference to the reactions of the average member of a modern society; and Greyson's case
to the contrary should not be followed. In my opinion the reactions of an average member
of a modern society to a known police officer chasing a woman, while he was obviously
acting as a police officer, would not be to stab him but at the most to stop him and ask
him his business.

It follows from the foregoing that I have had to conclude that the appeals must be
dismissed by reason:

(i) That, on the actual Acts, Inspector Smith was murdered in

circumstances which, in law, rendered each appellant a party to the crime.
(ii) That the belief, which was alleged in favour of each appellant,
as to facts which rendered the killing of Inspector Smith legally justified was not a belief
which the law regards as reasonable.

p39

(iii) That an act by Inspector Smith which could well have been
provocative could not reduce the crime to manslaughter on that account, as the killing of
Inspector Smith cannot be regarded by the law as being the result of an act which was
reasonably proportionate to the possible provocation.

Judgment:

DENNISON, J.: I have had the advantage of reading the judgment of my brother Charles
before it was delivered and because of his general comprehensive review of the evidence
at the outset I will not attempt to review all the evidence again, reverting later to details
of it in relation to what seemed to be salient points arising on the hearing of this appeal.

I would deal first with a number of what seemed to me to be relatively less weighty
matters advanced in support of these appeals, going on later to the more substantial
grounds of appeal.

In the former category was the ground advanced on behalf of the second appellant, Jacob
Siwila, that the trial judge wrongly admitted into evidence a statement by that appellant
and that in his ruling on the issue of admissibility 'he failed to consider if he had a
discretion to exclude it after having ruled that it was a voluntary statement'. It was also
said in this respect that a proper exercise of his discretion would have led to that
statement being excluded. As I see it the problem before the learned judge did not go
much beyond a relatively simple assessment of credibility and findings of fact. I cannot
see that it was necessary to go further to consider the exercise of any discretion in relation

316
to what would appear to have been a voluntary statement held to be such upon adequate
evidence.

It was submitted on behalf of the third appellant, Simon Mpuku Simukoko, and the fourth
appellant, Phillimon Siwila, that the learned judge 'erred in accepting as correct against
the weight of the evidence of P.W.13, Samuel Chipeta, that the first shot was fired from a
muzzle loader gun and, by inference, by a villager'. If indeed what the learned judge had
to say about this part of the evidence of Chipeta was a finding of fact it could scarcely be
said to be supported by adequate evidence. It was submitted for these two appellants that
the evil influence of such an error would result in the trial judge inferring that it was the
villagers who fired the first shot in the engagement now under consideration. I would say
in this regard that it is quite clear that the passage of which complaint is made does not lie
in the record as a finding of fact. It is found in the course of a general review of the
evidence. Immediately thereafter the learned judge continued his review of the
prosecution evidence with mention f the medical evidence as to the wounds suffered by
Inspector Smith. This view of the matter seems to me to be put beyond question when at
a later stage the learned judge went on to say 'This was the whole of the evidence which
was placed before the court by the prosecution upon which I find it necessary to comment
in this judgment'.

p40

Also in the former category it was said on behalf of the appellants Ingison Mutambo and
Jacob Siwila that the learned judge wrongly excluded evidence of P.W.13, Samuel
Chipeta, as to instructions which two messengers had received from a Chief prior to his
visiting Chapaula Village on the 20th July, 1964. On a similar aspect of the general
debate as to hearsay evidence at the trial the fourth ground advanced on behalf of the
appellants Alick Jonas and Patson Muwowo was that 'the learned judge was wrong in
refusing to admit evidence in cross-examination as to the intentions of the authorities
with regard to the villagers and their village'. It would be convenient to deal with both of
these grounds at this stage. With regard to the evidence of the kapasu, Samuel Chipeta, he
had said in evidence: 'On 20th July, 1964, I was sent by Chief Chibale to Chapaula
Village. The Chief said his instructions had been given to messengers. My instructions
were just to accompany the messengers. I was present when the instructions were given
to the messengers.' Upon objection by the learned State Advocate that evidence as to the
nature of the instructions was inadmissible the learned trial judge sustained the objection
on the basis that, as he put it, 'What Chief Chibale said to these messengers is hearsay'.
Whatever the merits of the arguments as to whether any report by the kapasu on this
matter would have been hearsay it is, in my view, sufficient now to say that it would have
been clearly irrelevant and therefore inadmissible in any event. What might well have
been relevant would have been what the messengers and kapasu told the villagers but not
what the Chief had told the messengers.

The other ground mentioned would appear to have related to an instance at the trial when
a Superintendent Vaughan, the deceased's immediate superior, was being cross-examined
by Mr Gardner in an endeavour to ascertain whether or not it was the intention of the

317
police to destroy villages occupied by followers of Lenshina. It must be said in fairness to
learned counsel that this ground was not strenuously advanced on this appeal. Whatever
the merits of the learned trial judge's ruling that this witness should state only what he
knew of his own knowledge and not what he heard from other people, that ruling cannot,
in my view of it, have occasioned any miscarriage of justice because Mr Gardner got his
answers by another approach when the same witness went on in further cross-
examination to say: 'I was under an officer commanding the division. He is Senior
Superintendent Monteith and he is the man who gave instructions to me. I had no specific
instructions to burn villages. The instructions I had were to go and se if the Prime
Minister's orders were being obeyed and then report back. Between the 20th and 24th
July, 1964, we did not destroy any villages.'

It was a common complaint advanced on behalf of all the appellants that the learned trial
judge had wrongfully excluded evidence as to events before the 20th and after the 24th
July, the date on which Inspector Smith was killed. This aspect of the trial is now viewed
to a great extent with hindsight and it is easy to be wise after the event. The record of the
trial has been prepared from the manuscript notes of the trial judge which form of notes
cannot

p41

normally be regarded as recording everything said at a trial. Allowing for that and for the
absence of any need for defending counsel to reveal the nature of the defence any earlier
than is usual I would have had greater sympathy with this complaint had the record
shown any attempt by learned counsel to impress upon the trial judge, as was emphasised
before this court, the importance of admitting more evidence than he was prepared to
allow for the purpose of supporting what was later to become apparent as the important
defence of honest and reasonable but mistaken belief within the contemplation of section
11 of the Penal Code. This court allowed the appeal to be argued on the basis that there
had been a ruling at the trial aimed at the exclusion of evidence as to events prior to the
20th July and after the 24th July, 1964. It is apparent from the form of questions asked
and answers given in evidence that some such ruling had been given. See, as one example
of many, the mention of those two dates in the extract from Superintendent Vaughan's
evidence which has just been quoted. The judgment contains this passage:

" From the outset of this case I have declined to allow it to be

turned into a commission of inquiry into the causes of the differences between the Lumpa
Church followers and the members of the United National Independence Party and I have
endeavoured to confine this inquiry to investigating the circumstances surrounding the
death of Inspector Derek Smith."

That was in general terms an approach which one can appreciate. It has been urged on
this appeal that the limitation of evidence to events between the 20th and 24th July, both
dates inclusive, hampered the defence in proving honest and reasonable beliefs of the
appellants that, in summary, there had been a history of violent action between Lenshina
followers and members of the United National Independence Party, that political party

318
provided the Government in power last July, that Government controlled the police force
and members of the police force arrived at Chapaula Village on the 24th July, 1964, to
make war on the villagers, attacking them with firearms and killing some of them. As to
events after the 24th July the trial court and this court know little of what transpired and I
would say that evidence of such events was properly excluded. The evidence to be
relevant had to be close in time or circumstance or both and evidence of events after the
24th July would have had to be related to the death of Inspector Smith very closely
indeed to be relevant. As I see it his death introduced a new factor, a completely new
circumstance. What happened thereafter" could not properly be related to evidence of the
state of mind of all or any of the appellants at the stages when Inspector Smith was fatally
wounded.

As to evidence of events before the 20th July, or, indeed, any other date arbitrarily chosen
at a stage prior to the 24th July, it would appear that the persistence of defending counsel
brought in sufficient evidence as to events to complete for any court an adequate picture
of the state of mind of these members of the Lumpa Church vis-a-vis the United National
Independence Party. In addition to

p42

what was adduced in this respect by the efforts of learned counsel, it must surely be
notorious and properly meriting judicial notice that there had existed, unhappily, a history
of violent action between members of the UNIP and members of the sect to which the
appellants belonged. [9] [10] Apart from personal experiences of the judges in the course
of their duties one may note and apply to this country the view expressed in R. v
Aspinall, 13 Cox's C.C., 563 at 571 - 'But judges are entitled and bound to take judicial
notice of that which is the common knowledge of the great majority of mankind....'
Although the learned trial Judge took a view of their evidence to be mentioned in a
moment, there lies in the record also the evidence of the appellants themselves, which
evidence was considered, and which sets out their views as to a threat from members of
the UNIP and as to their beliefs that the police were making war upon them. There is
nothing to show that this knowledge of earlier history, thus known to the trial court in
various ways, was not adequately considered. With reference to a defence under the
provisions of section 11 of the Penal Code the learned judge said:

" I have given my most careful consideration to this line of

defence . . . and I am satisfied that the accused cannot honestly and reasonably have
believed that the police party, led by Inspector Smith, dressed as they were in regulation
police uniforms, had come to Chapaula Village for the purpose of attacking them and
destroying their village."

Having regard to these matters I would conclude that no miscarriage of justice resulted
from any exclusion of evidence as to events after the 25th of July or prior to the 20th of
July, 1964.

319
That mention of the view taken by the trial judge of the defence evidence at the trial leads
on to mention of what he said in this regard and what was said of it on appeal. Having
reviewed all the other evidence and mentioned his attention to the statements which were
put in evidence the learned judge turned next to the evidence of the appellants, and said:

" Let me say at once that I was most unfavourably impressed

by all the accused, and I do not believe a word of their evidence. I will go further and say
that it is some time since I had the experience of observing such a set of clumsy yet
determined liars. Accordingly, I completely reject the evidence of the accused and accept
the evidence of the prosecution witnesses as to what took place on that fateful afternoon
of the 24th July, 1964."

In this instance I find it an unfortunate choice of words to say in such wide terms that not
a word of the prisoners' evidence was to be believed and learned counsel were well
entitled to argue upon its significance. There must have been some parts of their evidence
which were not shewn beyond question to be untrue. On reading that passage as a whole I
would be satisfied, however, that its general effect is to indicate what is sometimes
expressed as the view that a trial court rejects that part of the defence evidence in which it
is seen to conflict with the evidence for the prosecution. That effect in the

p43

passage quoted seems to me to be apparent in its concluding sentence, which shows a

prior balancing of the evidence and the final conclusion that the evidence of the
prosecution witnesses is to be preferred as to the evidence of 'what took place on that
fateful afternoon of the 24th July, 1964'. The evidence of the appellants themselves lies in
the record and this court may consider it in relation to the whole.

I would turn next to what appeared to me to be the more substantial matters raised on
behalf of the appellants and would, in this category, consider first the lawful qualities or
otherwise of the activities of the police patrol led by the late Inspector Smith, and in this
respect I conclude that there was no such unlawful aspect to their activities as would
merit serious consideration of the defences of, for example, provocation or self-defence.
A complaint was based on the facts that Inspector Smith led his patrol in chasing a man
who had been seen hiding in the bush near Chapaula Village and that when he entered the
gap in the stockade which surrounded three sides of the village, Smith chased a woman
for some distance. On the hearing of this appeal it was conceded by the learned State
Advocate that there was no statutory authority extant on the 24th July last to warrant any
use of force outside what is normally lawful on the part of police officers at times when
special emergencies are not recognised by law. It was not until the 27th July, 1964, that
the Governor notified a state of emergency and published in Government Notice No. 375
of 1964, the Preservation of Public Security Regulations, 1964, which were applied to the
Northern Province and the Lundazi District of the Eastern Province. So none of the
extraordinary powers conferred by those regulations were available as authority for any
action taken by police or other public authorities prior to that last-mentioned date.
According to the Superintendent Vaughan mentioned earlier: 'It was the intention of the

320
Government to move the people from their villages' and this had been announced in a
notice issued by some administrative authority conveying advice to local people in the
district. This document was mentioned at the trial and one of its paragraphs was read at
the request of defending counsel. The learned State Advocate agreed with me on this
appeal that one could regard the document as a sort of circular of advice and information
put out by the administration for the information of the local people. This Court called for
a copy of it and had it available in its full text under the authority of section 17 (a) of the
Federal Supreme Court Act, 1955, which applied to these appeal proceedings.
Superintendent Vaughan went on, in cross-examination, to mention the general
instructions to the police which have been quoted earlier in relation to the admissibility of
hearsay evidence. He said, also, that Inspector Smith was an experienced police officer
who had been in the Mobile Unit for three years, first of all as Second-in - Command of a
platoon and later as a platoon Commander. I saw, on the evidence as a whole, no question
of any unlawful activity on the part of the police up to the stage where Inspector Smith
and members of his patrol saw the man hiding in the bush near the village. Nor do I find
the subsequent chasing of this man to have been unlawful in the following circumstances.
The kapasu,

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Samuel Chipeta, spoke of the party seeing 'a man hiding near an anthill in the bush'.
Constable Nkata spoke of this man dropping his spears as he was running away. A
Constable Nundwe said: As we were going along I saw a man. He was sitting down
hiding. This person saw us and started running away. We chased him. I went to the place
where I had seen him first. There I found a spear, a piece of stick on which a cycle chain
was attached.' These items were later put in evidence at the trial. According to the
witness, Acting Assistant Superintendent Harris, mobile police were in the area in
question 'because there had been disturbances in the villages where police had been
attacked'. The third appellant, Simon Mpuku Simukoko, knew of the sentinel hidden
outside the village and confirmed his running away. Under cross-examination he adopted
an earlier statement made to the police as to the activities of this sentinel and his throwing
away of his weapons. As to the woman, the only surviving eye-witness who was in a
position to give evidence about her was Constable Nkata, P.W.10. He said 'When we got
near the entrance to the village I saw a woman. She was running into the village from the
entrance to the stockade. I was twenty yards from the entrance. When I saw this woman I
saw Inspector Smith start running after this woman. He took off his hat at the entrance to
the stockade and put it on the ground. I picked up his hat and followed him, running
inside the stockade. At this time I could still see Inspector Smith since I was only a short
distance behind him. After he had passed the stockade for a distance of about fifty to
sixty yards I saw Inspector Smith had been struck with a spear.' Cross-examined by Mr
Carruthers the same witness said 'Before the man threw the spear at Inspector Smith,
Inspector Smith had not done anything against any villager. I think that when that woman
saw us she ran away. I saw Inspector Smith run after her. The woman had done nothing
wrong and she got inside the village. When Inspector Smith chased the woman it was
near the village. The police did not shoot before the spears were thrown.' It seems
probable that this woman was not visible to members of the platoon further away from

321
Inspector Smith than was Nkata and that the others could not see through the four-foot
gap in the stockade until they reached it. Why Smith should have 'put' his hat on the
ground remains a mystery. There is a deliberate quality about the word 'put' as
distinguished, for example, from the word 'threw'. Constable Banda, P.W.11.,could see
this incident of the hat and said of it: 'It was a stockaded village. When Inspector Smith
came up to the stockade entrance he took off his cap and put it on the ground, then went
inside the stockade. It was a bush hat. Inspector Smith threw it down on the ground.
P.W.10 (Nkata) also entered the stockade. I saw him. When P.W. 10 got to the entrance
to the stockade he picked up Inspector Smith's hat, then I entered the stockade. When I
went through the entrance to the stockade I saw Inspector Smith had reached the house
where he was speared. I did not see the spear actually being thrown at him. I saw the
spear sticking out of the small of his back.' By the time that witness had gone through the
entrance to the stockade Inspector Smith had a spear in his back and a woman was
advancing on Constable Nkata with a panga in her hand. There can,

p45

of course, be no suggestion from the evidence that she was the same woman as had been
chased by Smith.

Why that first woman ran away remains a mystery. She could have been acting as sentry
at the gate and run to give warning or run away with a sense of guilt or because of
something which had been said. The truth of it cannot be determined for present
purposes. On the face of the evidence I would say that Inspector Smith's action in this
regard was lawful and see no clear evidence upon which a court could have a reasonable
doubt upon it. There is open, to the contrary, an inference that if there was any aggressive
intent on Smith's part towards that woman it is unlikely that, having first seen an armed
sentinel run away, an experienced platoon commander would have entered the stockaded
area alone without re-grouping his patrol and disposing it tactically for a more cautious
method of approach or at least asking Constable Nkata to cover him or help him in some
way. As it was, Nkata did not even know 'the drill' for the visit to that village.

All in all, in this regard, the evidence does not seem to one to show that the police patrol
had behaved in any unlawful manner such as would raise any reasonable doubt as to the
legality of the manner in which Inspector Smith exercised his normal authority as a police
officer. The shooting by other police officers developed generally after Smith had a spear
in his back and Nkata had been attacked with a panga. For these and for additional
reasons to be mentioned later as to pursuit of the police party, I would find that the
defence of self-defence was not properly open to the appellants, nor was the defence of
provocation, which might have been raised in an attempt to reduce the finding to one of
manslaughter. Viewing the evidence as a whole it appears that the first sign of violent
physical attack was in the form of the attacks upon Inspector Smith with a spear and,
later, upon Constable Nkata with a panga, mingled, possibly, at some stage which cannot
be determined with a shot of undetermined origin.

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To justify the conviction of each of the six appellants it was necessary that the evidence
should have proved to the extent that a court could feel sure of it, their joint participation
in prosecuting a common purpose within the terms of section 22 of the Penal Code.

One part of the evidence in this regard lies in the statements of the appellants put in
evidence by the prosecution without objection, save in one instance, and in the telling use
of those statements for the purpose of cross-examination. Nothing said by any one
appellant, about others in the course of these extra-judicial statements malt be regarded as
evidence against those others. Assessing their statements on that basis with their own
evidence and with the prosecution evidence of circumstances and the actions of the
appellants on the afternoon in question I would find that a court could properly discern
the necessary degree of proof of each of the appellants prosecuting a common purpose
within the terms of that section.

The first appellant, Ingison Mutambo, made two statements which were recorded by the
police and admitted in evidence. He said

p46

that as soon as he heard a shout of 'War, war' he collected a spear and an axe and went to
where the firing was going on. He said, 'When I arrived where the firearms were being
fired I found that Yonamu had already died on the ground, I saw a big crowd where a
European Police Officer was, all those people who were at the European Police Officer
were spearing him with their spears, and myself I cannot tell lies I also speared once with
my spear on his back, he was already dead when I speared him on his back'. In his
evidence he said that while mixing mud for his house he heard the sound of guns and
shouts of 'War' and ran towards that area carrying a spear. He later thrust the spear into
the deceased. Cross-examined by Mr Gardner he said 'I thought the police had something
to do with UNIP. He was the only European I saw on that day. I regarded him as the
leader of the African police. If I had not chased the police I thought they would kill us all.
I decided to kill their leader. As a result all the rest ran away.' Cross-examined by Mr
Carruthers he said 'I ran out armed. I heard there was war in the village. I carried a spear
for my own protection. To protect myself from enemies. To protect myself from the
police. If they see me carrying a weapon they might run away. Before I picked up the
spear I heard people shout "There is war. The police are firing at us and killing us." When
I stabbed Inspector Smith the body was not moving. Other people had stabbed him first.'

The second appellant, Jacob Siwila, made two statements which were recorded and
admitted in evidence. In answer to the charge he began by saying 'I cannot deny; we
killed him'. In his earlier statement he had explained preparations in Chapaula Village for
'a big fight with UNIP one day' and the later advice from their leader as to a possible visit
by police including the advice 'if they do, don't be afraid, you must fight as hard as you
can'. This appellant acting on his leaders' instructions went to his house and collected his
spear. According to his statement, on an alarm as to the police arrival and a call to get
ready he ran to where the police were, saw the European Police Officer speared, joined in
the pursuit and subsequent further attacks and stuck a spear into Smith when he was

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already dead. In cross-examination at the trial he alleged variously that the statement had
been forced from him or lured from him by promises of favour or contained what he
never said. Cross-examined by Mr Gardner he said 'When I first saw those policemen
there I thought they would kill us. I only saw one European Police Officer there. I
thought he was the leader of the police. I attacked that European because I thought the
police would kill me.' The third appellant, Simon Mpuku Simukoko, made two recorded
statements, translations of which were in evidence as Exhibits S.2 and Z.2. In the latter he
too told a story of martial preparations and the later instructions of their leader to go and
fight the policemen who were coming to their village. Like others he ran and fetched a
spear and an axe. He saw the European officer struck with a spear by a man who was
then shot by that officer and later himself hit the European on the left thigh with an axe.
In examination-in-chief he said 'At 1 p.m. on 24th July, 1964, I went to

p47

another gate at the other side of the village. I mean at the southern side of the village. It
was where the stockade was not completed. We were many who were there to build more
stockade. I heard Lameck Simbeye shout. He shouted "Come here, policemen have
come." We all went to where Lameck Simbeye was. He was on the eastern side of the
village inside the village. He was inside the village, among the houses. When I arrived
there he was close at that place. He said to us "You are here. The policemen have come."
He did not say anything else to us when we got to him but we started running to where
the policemen were.' He later said that when he heard a gunshot and a call from the
village leader he ran to the leader carrying a spear and an axe. There were dead men on
the ground and the policemen were running away. He struck the European with an axe
when he was already dead. Cross-examined by the learned State Advocate he admitted
parts of the statement which was translated as Exhibit Z.2 as being true but later alleged
that the statement had been forced from him and went on to say variously that it was true
and was not true. He was a member of a crowd carrying spears, chased the European and
another police officer and struck the European on the right thigh with an axe. He also said
'I chased that European with the intention of killing him after I caught him. I wanted to
kill him because he fired a gun in our village. I was very angry at the time.'

The fourth appellant, Phillimon Siwila, made two recorded statements of which
translations were admitted in evidence as Exhibits T.2 and V.2. In the latter statement he
said that he picked up his axe and left his house in response to a cry of 'Come out, some
policemen have come in the village'. In the village firing guns near the gate were a
European police officer and an African constable. He saw the people in the village
running towards where the European was, carrying spears and axes. He said 'I also started
running towards the gate where my friends were running. When I reached where the
European was I saw a woman Namwipa Nachela axe the European in the shoulder. I then
saw the European running towards the stream. Then the whole group started to chase the
European. The European fell down because he tripped in the grass.' The combined effect
of his two statements indicates that he agreed to having speared an African constable but
not the European officer. In his evidence-in-chief he said that on a shout of Policemen
have arrived' he heard a shot, picked up an axe and ran to the sound of the shots. The axe

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was only for his own protection. He saw policemen running out of the stockade. 'The
whole crowd ran out of the stockade. I stopped running when I found the European had
fallen. This was the first time I saw the European. I found him dead. There was a crowd
of people there, Chapaula villagers. I struck that European with a fish spear on his right
shoulder.' Cross-examined by the learned State Advocate he said 'No. The European
police officer was alive when I first saw him. The European police officer was also firing
a gun. It was a revolver he was firing. After this I did not see what the European was
doing. He started running away. When the European ran away we chased him. We chased
him because he killed our relatives. If we caught him we intended to kill him as we were

p48

angry. I was carrying an axe.' He went on to say 'I was armed with an axe when I chased
that European. I first struck the European at a time I cannot remember. I only struck him
once. When I struck that European he was lying face-downwards. I struck him with my
axe. I struck him with a fish spear that morning. I remember saying that to Mr
Smallwood. I forgot that I had struck him with a fish spear and I said I struck him with an
axe. I struck him with a fish spear. I just got a fish spear from a friend. I got it from a
deceased person. I got the fish spear from a dead friend, as we were running along. When
I chased that European I was carrying both a fish spear and an axe. I attacked that
European because it was a war.'

The fifth appellant, Alick Jonas, made two recorded statements, translations of which are
in evidence as Exhibits N.2 and V.2. In the former, after being charged, he did not
mention any preliminary preparations for war but described how the first attack in the
village was by a villager on Inspector Smith and that it was then when a woman took up
the panga. He went on 'Then Patson Silwimba speared this European on his back with a
spear. The European started to run away. I and other people chased him and near the
stream the European fell down. I then speared him with my spear but although I speared
him he was already dead. Then it is not me who killed him, I speared him after he had
already been killed by the spears of my friends, but I am not denying that I speared him.'
In examination-in-chief he mentioned a call of 'There is war' from the village leader, how
he joined in the chase of the police and how he stabbed a dead European with a fish
spear. In cross-examination by the learned State Advocate he maintained that the
statement already referred to had been forced from him, that part of what he had then said
was not true and that his statement after being charged only contained what he had heard
from friends.

The sixth appellant, Patson Muwowo, made two recorded statements of which
translations lie in the record as Exhibits O.2 and W.2. In the former, made after being
charged, he mentioned no participation in any attack on the police and said that he had
been shot and injured at an earlier stage of the shooting while sitting outside his house. In
the statement made earlier he had described his attendance at a meeting and his joining in
the general agreement as to some messengers that 'if they return and want to fight we
shall fight with them'. He described the selection and posting of guards round the village
and a shout between noon and 1 p.m. on the 24th July of 'The policemen are coming'. The

325
villagers chased the policemen later and the statement went on 'We all then started
chasing the European. Some were carrying axes and some spears. This European was
with other African policemen who were also running towards the Nkanka stream. Whilst
the European was running away Patson Silwimba speared the European in the back. The
European fell to the ground. We reached where the European was and we all started
spearing him with spears. I myself speared him with a fish spear. Everyone speared this
European, not even one did not spear him. This European died.' In evidence led by his
learned counsel he said that he linen of no preparations in the village on the 23rd

p49

July and was engaged in building a hut on the 24th when he heard gunshots. He said
'When I first saw the European policeman he was not inside the village. I saw him at the
stream. The people chased the European to the stream. I myself went to the stream. There
I found the European lying on the ground dead. I stabbed him with a fish spear. I was
angry because he killed my relatives. When I first heard the police had come I thought
they had come to kill us. I thought this because we were hated by UNIP. If the European
had not been killed I think we would have all been killed.' In cross-examination by the
learned State Advocate he said that when he heard the gunshots he carried his spear. The
contents of his longer statement already referred to only came to his knowledge from
what he had heard from other people. He further said in the same cross-examination:
'There was a crowd chasing the policemen when I arrived at the scene. I did not see the
members of the crowd holding anything. They were chasing the policemen. I joined in
the chase. If I caught the policeman I intended to kill him. When I saw him, the European
was lying at the stream. He was lying on his face. I struck him on the right forearm
(witness indicates). I thought he was dead because he was not moving. This was the only
reason I thought he was dead.'

I would interpolate here that the equivocations of all the appellants under cross-
examination no doubt justified their description by the learned trial judge as clumsy and
determined liars.

On the prosecution side the local man, kapasu Samuel Chipeta had said in examination-
in-chief: 'I turned round and then looked back towards the village and saw Inspector
Smith coming running towards me. People were quite close to Inspector Smith, pursuing
him, shouting "Jericho". Then I saw them plunge their spears into him and he fell on the
ground. I do not know how Inspector Smith fell as there was long grass at the spot. When
Inspector Smith fell to the ground there were people near him. These people were still
thrusting their fish spears into him whilst he was lying on the ground. I could recognise
some of the people I saw that day. I recognise the 2nd, 3rd, 4th, 5th, 6th and 7th accused.
These six accused that day were thrusting spears at Inspector Smith at the place where he
had fallen. I had also seen them chasing Inspector Smith and shouting " Jericho".' As to
his mention of recognising the '3rd' accused in that context, the youth in question was
convicted but is not an appellant. One might mention here incidentally that the
identification of all the appellants as persons seen by prosecution witnesses to have
inflicted injuries on the deceased has not been challenged on this appeal. Cross-examined

326
by Mr Smallwood the same witness said: 'I have identified all the accused when they
were chasing Inspector Smith. I knew all the villagers before. There was a big crowd
chasing Inspector Smith. I could not identify the others as they are not here.' This
evidence also indicates a common purpose and I would say that there is further proof of it
and of a general state of readiness to fight in the evidence showing that, in what must
have been a short period while Inspector Smith ran from the gap in the stockade to the
nearest huts, someone was already in ambush behind the bundles of grass stacked against
the tree in question ready to spear him when

p50

he reached it. In my view the speed at which the villagers generally reacted and attacked
Smith and Nkata must clearly show a prearranged plan to fight any police or messengers
entering the village. Whether or not each of the appellants was, at the stage of the village
being alerted, participating in the prosecution of a common purpose of which a probable
consequence was the murder of Inspector Smith and it must be noted that the malice
aforethought essential for proof of murder entails an intention to cause grievous harm
well as an intention to cause death, there was, In my judgment, ample proof of it as to
each individual appellant by the stage when, armed with one or more deadly weapons, he
was chasing the police party towards the stream and going further, willingly to inflict the
injuries on the deceased or on his dead body.

As to wounds inflicted after an earlier mortal wound, in the appeal of Chenjera, 1960, R.
& N., 67, the Federal Supreme Court considered a case where the appellant had joined
with a mother in a murderous assault on her child. On his own admission he knew that
the mother's intention was to kill, and he further admitted that it was also his intention to
kill. The injuries which caused the child's death had already been inflicted by the mother
before the appellant joined in the physical assault while the child was still alive. The
circumstances and the law involved there are to be distinguished from what applies in this
appeal, but I would borrow with respect from what seemed to me to be appropriate
comment for present purposes by Tredgold, (C.J., beginning at 72 of that report:

" Suppose a situation in which an official is sent to explain an

unpopular measure. A crowd gathers at first orderly. As he proceeds his listeners become
more and more incensed. At length one of his hearers seizes a heavy stone and throws it
at him. Immediately the thrower suffers a revulsion of feeling and refrains from further
action but the crowd is roused and its members continue to pound the body with stones
till the official is brutally done to death. Suppose, at the trial, the doctor says that the first
stone may easily have caused a mortal wound. It is easy to imagine the bewilderment
with which a verdict would be received by which the thrower of the first stone was
convicted of murder and those who had ruthlessly pursued the attack were acquitted or
convicted of some lesser crime. It is not putting it too high to say that, in the majority of
cases arising from the spontaneous violence of a mob, it would be impossible for the
Crown to prove that the victim had not received a mortal wound before an accused joined
in the attack upon him. In the result, if this proof were required, a great number of people
who were morally and legally guilty of murder would not recede the punishment they

327
deserved. Conversely, it does not offend against a sense of justice that a man who joins in
a murderous attack should be convicted of murder despite the fact that the person
attacked had been wounded to death before he joined in.

The practical aspect may be tested in another way. Suppose

that a jury was trying a group of people involved in a mob killing, and that they were
directed that they could convict a

p51

number, who were in at the beginning, of murder, and a

number, who only assisted after the victim was dead, as accessories after the fact to
murder, but that there was an intermediate group, that had murderously assaulted the still
living victim, and that these, on the medical evidence, could only properly be convicted
of attempted murder; I venture to think that the situation would be regarded as so
incomprehensible that a confused verdict might well result."

[6] I would consider finally the matter of the important defence advanced in relation to
section 11 of the Penal Code. The learned trial judge explained in his judgment that he
had 'taken the view that in the circumstances of the case the expression "an ordinary
person" shall mean an ordinary person of the community to which the accused belonged'.
In my view that was not a correct approach to this matter. It is not entirely clear what
original text was in contemplation in that reference to the expression 'an ordinary person'.
It is not mentioned in section 11 but probably ensued from a consideration of section 183
of the Penal Code, in which there is the one and only express statutory provision of the
criminal law of this country for the assessment of 'ordinary person' on that basis. It relates
specifically to the measurement of wrongful acts or insults and the extent to which they
may constitute provocation in murder cases. There is no comparable standard for
assessing what is reasonable for the purposes of section 11 and the terms of section 18 of
the Penal Code raise the strongest inference that the express and exceptional provisions
of section 183 cannot be transported and read into section 11 in order to exclude the
operation of the rule stated in that section. Section 18 provides:

" Subject to any express provisions in this Code or any other

law in operation in the Territory, criminal responsibility for the use of force in the
defence of person or property shall be determined according to the principles of English
Law."

I think it is important to emphasise here that it is the 'principles' of English Law which
have to be followed in that determination of criminal responsibility.

The importance of Jackson's case, 1957 R. & N., 443, for present purposes is obvious.
The appeal there was brought at the instance of the Attorney-General of Nyasaland, the
accused man having been acquitted at his trial on the ground that, as he had killed a
woman in the reasonable belief that his life was in peril as the result of her practising
witchcraft against him, the killing was in self-defence and constituted excusable

328
homicide. The terms of the section of the Penal Code of Nyasaland as to reasonable belief
which were in issue there were the same as those of section 11 of the Penal Code of
Zambia. In that case, Tredgold, C.J., said, at 448:

" The test of reasonableness is one that is constantly invoked

in English law. In applying it, the standard is what would appear reasonable to the
ordinary man in the street in England."

p52

In commenting further as to the measure of reasonableness he did not specifically import

the Englishman into Nyasaland but said that 'bearing in mind that the law of England is
still the law of England even when it is extended to Nyasaland', he could not see how,
applying the proper test, any court could hold that a belief in witchcraft was reasonable so
as to form the foundation for a defence that the law could recognise. On the same point
Clayden, F.J., as he then was, said at 459:

" The English common law in regard to self-defence requires

that the person acting in self-defence should have had an honest and reasonable belief
that there was immediate danger. That belief in this case was dependent upon a belief in
witchcraft. If the test whether a belief is reasonable is an objective test, whether a
reasonable man might have held that belief, the belief in witchcraft prevalent in an area in
Nyasaland could not affect the question. For the English common law when it is applied
in a Territory does not become altered because it is there applied. And there is no
provision in the Code in regard to self-defence, as there is in regard to provocation, that "
'an ordinary person' shall mean an ordinary person of the community to which the
accused belongs". And if the objective test based on beliefs of the reasonable man is
applied, there can, I consider, be no doubt that a reasonable man would not believe that a
curse of the kind under consideration would be effective to kill him."

Later, at 461, in reference to the belief in question he said 'A reasonable man in England
could not so think. That is the test which the Nyasaland Penal Code has laid down.' Still
later at 461, he makes a reference suggesting that no reasonable person in England could
have feared death in the circumstances apparent in that case.

One must hesitate respectfully in any comment on the views of jurists of the reputation of
Tredgold, C.J., and Clayden, C.J., but having considered the views of my brother Charles
I have wondered to what extent their mention of 'the man in the street in England' and a
'reasonable man in England' would have been modified had considerations now raised by
Charles, J., been put before them. There can be no doubt but that the ordinary reasonable
man, of the standards contemplated according to the principles of the English common
law, is the person to be considered in relation to the mistaken belief of section 11, but,
having regard to the way in which the English common law has emigrated, it seems to me
unreasonable to import the ordinary reasonable Englishman as the norm for tests of
reasonableness under the law of Zambia. In connection with this appeal I turned, without
success from the point of view of pure judicial authority, to a series of articles dealing

329
with the migration of the English common law in Vol. 76 L.Q.R., between pages 39 and
77. The articles were reproductions of talks by eminent jurists on the British Broadcasting
Corporation system. In introducing them, Viscount Kilmuir, then Lord Chancellor, said:

p53

" Lastly, the common law has always relied largely on the
ordinary citizen. There is the magistrate and the juror, who are not lawyers. And there is
that familiar figure known to lawyers as "the reasonable man". He is the ordinary prudent
person by whose standards civil liabilities are governed. Thus our lawyers and judges
have a close relationship with people who are not experts practising some esoteric
science. This has made them particularly aware of change in ordinary standards of
conduct and thought, and a legal system which keeps in touch with those for whose
service it exists is one they will hesitate to throw lightly away. Those are, in my opinion,
the basic reasons why the common law has proved such a successful migrant. How it has
happened you will hear from others."

He concluded with the observation that as a result of the migration of the common law
nearly one-third of the world's population are governed by laws which have the same
basic principles and pointed out that all common lawyers at least speak a similar language
whether the tongue they speak it in is English or Hindustani. The other speakers included
Professor Goodhart and distinguished jurists from America, Australia, India, Israel (with
the English common law inherited during the days of the Palestine mandate), the
Republic of Ireland and Canada.

For local purposes there remains of course the firm tie of section 18 of our Penal Code
but from that informal review of the way in which the common law of England has
migrated and been adapted in its application in the countries of its adoption I move
towards the conclusion that it would be an unjustifiable standard to bring the very
Englishman from England into the legal considerations here for an assessment of
reasonableness in Zambia and, for example, to put that traditional figure, well known to
lawyers, the man in the Clapham omnibus, into Chapaula Village as the norm for
assessment of the beliefs held by these appellants. I conclude that the standard here
should be the ordinary reasonable resident of this country and that one should consider
him, not necessarily as an Englishman but according to the principles of English law as to
what constitutes a reasonable man. Save for the exceptional cases referred to by my
brother Charles which involve attention to special qualifications or training in direct
relation to criminal acts done by persons possessing such qualifications and save for the
purposes of each individual case arising for consideration under express provisions such
as those of section 183 of the Penal Code, as in England and in any other country
adopting the common law one cannot consider for these purposes the cranks, the
educated, the illiterate, the rich or the poor or any particular class. Without express
statutory provision, which I hope would be rare, it would introduce a chaotic element into
the criminal law to measure reasonableness on the standards of the very man in the dock
or his like. One should look to a specimen typical of the ordinary reasonable man of this

330
country, determined in accordance with the relevant principles of the English law as to
reasonableness.

p54

The basis of assessment chosen by the learned judge in the instant case, namely the
ordinary member of the community to which the appellants belonged, worked no
prejudice to them. He used a lower standard than was justified and still found their beliefs
unreasonable. Even on the higher standard which I believe should apply I have concluded
that the beliefs advanced in evidence and argument on behalf of these appellants were not
strewn to be reasonable beliefs within the contemplation of the terms of section 11 and
that the finding of the learned trial judge on this aspect cannot be challenged.

On the preliminary subjective test as to whether or not each of the appellants mistakenly
held the beliefs already mentioned the bulk of the relevant proof lies in their own
evidence and statements, with possible inferences to be drawn from their prevarication
under cross-examination and all in all it would be difficult to say on an assessment of the
evidence adduced that the appellants did not hold the beliefs in question. The sum of their
beliefs was that the police party would attack them and that they must therefore act in
self-defence, although there was one incidental reference to a belief that the police would
remove them from the village which they had put into such a state of defence. That they
should hold such beliefs was a sad result of the times in which they lived over the year or
two preceding the 24th July, 1964, but so far as the courts are concerned one may only
look next to the objective test for the reasonable qualities of the beliefs which led to the
fierce attack on Inspector Smith and his party.

On the earlier visit of the 22nd July, Inspector Smith and a patrol had visited the same
village without any untoward result. They only spoke to about four villagers on that
occasion and in this regard and with regard to the issuing of the administrative circular of
advice, one cannot read too much significance into these two events inasmuch as there
was little direct proof at the trial that any appellant knew of these or that his thoughts had
been influenced by either. However, taking them at their best from the point of view of
the appellants I cannot see that knowledge of these, either on their own or in combination
with other aspects of any beliefs which were held, could have led a reasonable man to
believe that the police would attack villagers. As to the advice given on the earlier visit of
the 22nd July, there lies in the record the evidence of Sergeant Moyo, P.W.14, who
interpreted Inspector Smith's words to the villagers using the Tumbuka language.
According to him he did little more than ask the villagers why they had not moved from
the village. He contradicted the evidence of Constable Nkata suggesting that he had told
the villagers that it would be bad for them if they did not move. I think that one must
accept the evidence of the more senior officer who acted as interpreter and would say that
even if Nkata were correct there was nothing in the words which he purported to
remember which would lead a reasonable man to expect an attack, with uniformed police
officers killing the villagers.

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As to the informal circular of advice of which this court saw a copy it was not reproduced
in the clearest of terms and its second

p55

paragraph, read or heard on its own, could have caused a certain amount of alarm as the
general context was one of advice to Lumpa followers to leave their best defended
villages, with Government transport to assist if available, and advice that 'people should
be received peacefully and they are not supposed to be hindered. They should be assisted
according to law.' There was other conciliatory advice and it was an unfortunate
arrangement of the text that the second paragraph, being the first positive advice in the
circular, should say: 'Lenshina's villages which are not authorised must be destroyed
within one week'. Even if any appellant had heard of that circular or even of its second
paragraph only and that knowledge is put with the total of his other relevant knowledge
on which his beliefs were said to be based, I still cannot see that he held a reasonable
belief as to an attack by uniformed police officers meriting a defence on the scale strewn
in the evidence. One would see more reason in the behaviour of the villagers had there
been, for example, an attempt at a parley or some preliminary shouted question to
Inspector Smith when he entered the village area on his own, instead of a spear in his
back from a position of ambush.

At the trial no appellant claimed to have seen the chasing of the armed sentinel or the
woman so they could not claim to have had a direct mental reaction to those particular
events, thereby intensifying their earlier fears. According to them and the evidence
generally they reacted to some general alarm, be it shouts of 'War' or warning of the
arrival of the police party, heard the sound of shooting, found two relatives dead on the
ground and believed it necessary to join in the general pursuit of and attack on the already
retreating police officers who included the deceased in their number. Assessing their
beliefs on the basis already discussed I cannot conclude that even in the sum total of all
the circumstances said to have contributed to the formation of their mistaken beliefs,
these appellants committed the acts which comprised the offence under the influence of
reasonable beliefs.

In my judgment, it follows that no defence was open to them under the terms of section
11 of the Penal Code and I too agreed that these appeals should be dismissed.

Judgment

BLAGDEN, C.J.: The difficult question raised by these appeals is whether the appellants'
defence that they were acting in self-defence under the honest and reasonable, but
mistaken, belief that the police patrol led by the deceased, Inspector Smith, had come to
attack them, should have succeeded in the Court below. Section 11 of the Penal Code
(Cap. 6), provides that:

" 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

332
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."

There follows a further provision which is not relevant here.

[5] No burden rested on the accused to establish their defence. The burden was on the
prosecution to negative it. But it was, of

p56

course, for the accused to raise the defence in someway, either through evidence or
argument, or both. Without this there would be nothing for the prosecution to negative.

The issue was raised here and two questions fell to be answered in respect of each
appellant:

(1) Did he honestly believe that the patrol had come to attack
them?
(2) If so, was that belief reasonable?

To negative the defence of mistaken belief it was for the prosecution to satisfy the court
beyond reasonable doubt that either one or the other of these questions must be answered
in the negative.

In putting forward the defence counsel for the accused sought mainly to adduce the
necessary evidence through the cross-examination of the prosecution witnesses, by the
evidence of the accused themselves, and through their statements to the police. At the
close of the prosecution case the court was informed by the prosecutor that a certain Mr J.
W. Hannah was in England on retirement leave and accordingly it was impossible for
him to give evidence. Mr Gardner then stated his opinion that the defence was prejudiced
by the absence of this witness. No application was made by the defence to call any other
witness and no point has been taken on this appeal about Mr Hannah's absence.

But it was strongly argued that the learned trial judge wrongfully excluded evidence
relating to events both before and after 24th July.

What the defence wished to show was that on occasions prior to 24th July adherents of
the Lumpa Church had suffered persecution from members of the United National
Independence Party, which took the form of lethal violence and arson; and that on
occasions subsequent to 24th July, 1964, the police had destroyed Lumpa settlements and
killed and injured a number of the inhabitants. Evidence of these matters would support
their claims that, with the United National Independence Party in office, and the police
their servants, they had every reason to believe that they were liable to attack by the
police on the orders of the Party.

333
An accused person is never obliged to disclose his defence until he embarks upon it. But
here it would have been prudent to have done so at the first possible opportunity, and it
would have made the trial judge's task easier in regard to the relevancy of the evidence
which the accused wanted admitted. Perhaps the judge was so apprised; but the record
does not say so. In any case, the judge was faced with a somewhat delicate situation.
Whilst he had to give the accused every proper opportunity of putting forward their
defence and adducing evidence in support of it, he could not allow the trial to develop
into a full scale inquiry into the causes of the disaffection between members of the
Lumpa Church and members of the United National Independence Party. In the result he
admitted evidence of events occurring between 20th and 24th July, 1964, and ruled as

p57

inadmissible evidence touching events occurring before and after those dates. Despite his
ruling, however, it is apparent from the record that evidence of matters belonging to
periods outside those dates was introduced.

I think the judge was quite right to exclude evidence of what happened at Chapaula
Village and elsewhere on 25th July, 1964, and thereafter. From such evidence as was let
in it was clear that on that particular day the police had returned to the village, doubtless
considerably reinforced, and had shot and killed a number of the villagers, captured
others and destroyed the village. The accused presumably wished this evidence in to
show that their alleged belief that the police had come to attack them on the 24th was
reasonable in view of the fact that they did attack them on the 25th. But I am satisfied
that the events of 25th July were not relevant. By that date, as a result of what the
villagers themselves had done the day before, the situation was entirely changed. Police
action on the 25th was therefore dictated by very different considerations.

As to events prior to 20th July, it may be that some of the evidence excluded was
technically admissible in view of the nature of the accused's defence. We have been
through the record carefully and noted each instance of exclusion; and taking into
account all the evidence that was let in notwithstanding the judge's ruling, I cannot see
that the accused were prejudiced in their defence or that any miscarriage of justice took
place on account of any of the exclusions.

After citing the relevant part of section 11 of the Penal Code the learned trial judge dealt
with the defence of mistaken belief in the following terms:

" I have given my most careful consideration to this line of

defence and have taken the view that in the circumstances of the case the expression " an
ordinary person " shall mean an ordinary person of the community to which the accused
belonged and I am satisfied that the accused cannot honestly and reasonably have
believed that the police party, led by Inspector Smith, dressed as they were in regulation
police uniforms, had come to Chapaula Village for the purpose of attacking them and
destroying their village."

334
[6] The expression 'an ordinary person' does not occur in section 11. The judge was
presumably testing the honesty and reasonableness of the accused's alleged mistaken
belief by comparison with the reactions of an ordinary person placed in their position,
and the conclusion he arrived at was that an ordinary person of the community to whom
the accused belonged could not have honestly and reasonably believed that Inspector
Smith's patrol had come to Chapaula Village to attack them and destroy their village.

I think that this test is open to the criticism that it unduly favoured the accused, but on
this test the judge clearly came to the conclusion that the accused's belief was neither
honest nor reasonable.

p58

I am quite satisfied that this is a finding which the evidence will support and I do not
think, therefore, that the judge should be upset on it. He said, in the course of his
judgment, as I have already related, that he had given the accused's defence of mistaken
belief his 'most careful consideration'; my only concern arises from an earlier passage in
his judgment in which he commented adversely on the evidence of the accused and said:

" . . . I do not believe a word of their evidence". And

" . . . I completely reject the evidence of the accused . . .".

This is somewhat extravagant language. Obviously the accused spoke some words of
truth but quite clearly the judge was very much struck by their patent dishonesty in the
box. Indeed, much of it is apparent from a study of the record. The judge had the
advantage of seeing and hearing the accused give evidence and he had no hesitation in
rejecting their story that they believed they were being attacked by the police. I think that
finding should stand: and it disposes of the accused's claim that what they did was done
under a mistaken belief. No question of the reasonableness of the belief arises because
there was no belief.

I would, however, like to say something on the interpretation of the words 'honest and
reasonable' as used in section 11 of the Penal Code in qualification of the expression
'mistaken belief'. I agree that the word 'honest' really adds nothing to the definition. A
belief cannot be a belief unless it is honestly held. The word was clearly inserted by the
Legislature here to emphasise that the defence under section 11 can only exist where the
accused is acting under a genuine belief in the existence of a state of things, and not just a
mere suspicion.

The word 'reasonable' presents much more difficulty. By what standards is the
reasonableness to be gauged? The Legislature has given no indication. But in my view
the reasonableness must clearly be judged by objective standards. I would adopt the
judgment of Tredgold, C.J., in Attorney-General for Nyasaland v Jackson, 1957 R. & N.
443 when he said at 448:

335
 " . . . to justify a killing in self-defence the belief in the reality
of the danger must not only be genuine, it must be reasonable. The test of reasonableness
in itself implies an objective standard. In considering whether a man's belief is genuine,
the belief must obviously be examined subjectively. But to answer the question whether
or not a belief is reasonable, the test must equally obviously be by an external standard....
It is the normal and the average that must be the guide."

The Zambian Penal Code recognises this, at least by implication by making express
provision in section 183, that for a special and limited purpose 'an ordinary person' shall
mean an ordinary person of the community to which the accused belongs. There is a
similar provision in the Nyasaland Penal Code with which the Court was concerned in
Jackson's case. Dealing with it, Tredgold, C.J., said (at 448, 449):

p59

" Apart from such a provision the law would not recognise the
existence of separate sections of reasonable persons. Each case must be referred to one
norm, and this must be so or otherwise the test becomes meaningless. Admittedly it is a
somewhat difficult criterion to apply, and often involves unduly optimistic assumptions
as to general standards of intelligence, but there are cases in which it is impossible to lay
down a more specific rule and, in default of something more definite, the test of
reasonableness has to be accepted. In such cases to recognise a varying standard of
reasonableness would vitiate the whole purpose of the test, and the court has, to the best
of its ability, to judge the mental attitude or reactions of the ordinary man of common
sense. It cannot allow this standard to be varied in any way by the eccentricities of the
particular individual who is on trial."

But that does not determine the matter. How should one assess 'the ordinary man of
common sense'? Clayden, F.J., in Jackson's case, equated him with the 'reasonable man in
England' (see 461). He did so because the Nyasaland Penal Code, like the Zambian Penal
Code, enacted that criminal responsibility for the use of force in self-defence should be
determined according to the principles of English law.

But I can see two objections to this equation. In the first place, although on the facts of
the appeals before us - as also in Jackson's case - the two defences of mistaken belief and
self-defence are so interwoven as to be inseparable, nevertheless the reasonableness we
are concerned with here is the reasonableness of the mistaken belief which is allegedly
held, and not the reasonableness of the conduct in self-defence pursued in consequence
thereof. There is no reference to the adoption of 'the principles of English Law' in section
11 of the Zambian Penal Code relating to mistake as there is in section 18 relating to self-
defence. It was the same with the Nyasaland Penal Code. And these are not English
Statutes.

In the second place, and in any case, it is surely axiomatic that when English laws or
principles are applied in Zambia they are applied mutatis mutandis.

336
In my view the standard we must apply here is not the standard of the reasonable man in
England but the standard of the reasonable man in Zambia. I do not apprehend that those
standards, qua standards, will be so very different, but different considerations may well
arise according to the circumstances.

A useful commentary on the meaning of 'reasonable' appears in 3 Stroud's Judicial

Dictionary at 2462. It reads as follows:

" (1) It would be unreasonable to expect an exact definition of

the word "reasonable". Reason varies in its conclusions according to the idiosyncrasy of
the individual, end the times and circumstances in which he thinks. The reasoning which
built up the old scholastic logic sounds now like the jingling of a child's toy. But mankind
must be satisfied with the reasonableness within reach; and in cases not covered by
authority,

p60

the verdict of a jury (or the decision of a judge sitting as a

jury) usually determines what is "reasonable" in each particular case; but frequently
reasonableness "belongeth to the knowledge of the law, and therefore to be decided by
the justices". (Co. Litt. 56b)."

We do not have the jury system here and so it is for the trial judge to decide. He should
not apply a subjective standard, nor the standard of any particular sub-community to
which the accused belongs. He should, in my view, apply the ordinary criterion of
reasonableness of a modern civilised community of the standard that exists within
Zambia today.

If he has properly applied such a test to the actions of the accused before him as disclosed
by the evidence, the finding he comes to thereon should not be lightly set aside.

Here, as I have indicated earlier in my judgment, the judge applied a test which was
rather more favourable to the accused. He found against them and I do not think that that
finding can be disturbed. It was for these reasons that I concurred in dismissing these
appeals.

Appeals dismissed

337
JOSEPH MUTABA TOBO v THE PEOPLE (1991) S.J. (S.C.)

SUPREME COURT
GARDNER, A.J.S, SAKALA AND CHAILA, JJ.S.
5TH MARCH AND 6TH MAY, 1991
S.C.Z. JUDGMENT No. 2 OF 1991
APPEAL NO. 66 OF 1985

Flynote

Murder - Proof beyond reasonable doubt - Witness with an interest to serve - Section 167
of the Criminal Procedure Code

Headnote

The appellant and some other people including the deceased were at a drinking party.
They later left the party and on the way, some branched off to go to their villages leaving
the deceased and the appellant to proceed to their own village. It was testified that the
appellant was the last person to be seen in the company of the deceased. The following
day, one of the villagers and the deceased's father interrogated the appellant on the
whereabouts of the deceased whereupon the appellant then led them to an anthill where
they found the deceased's half-naked body. The appellant did not offer any testimony in
his defence but called a psychiatrist to prove the appellant's defence of insanity.

Held:

(i) That on the balance of probabilities the defence had proved that the appellant
was suffering from a disease of the mind at the time of the commission of the
offence.

338
Cases cited:
(i) Musongo v The People (1978) Z.R. 266
(ii) Mushanga v The People S.C.Z. Judgment No. 15 of 1983

For the appellant: Mr. S.K. Munthali, Senior Legal Aid Counsel
For the State: Mr. A.B Munthali, Assistant Senior State Advocate
__________________________________________
Judgment

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

The appellant was tried and convicted for the offence of murder contrary to section 200
of the Penal Code Cap. 146 of the Laws of Zambia. The particulars of the offence
alleged that on 21st September, 1980 at Kasama, in the Kasama District of the Northern
Province of the Republic of Zambia, he murdered Salome Safeli Chitabo. He was
sentenced to death. He has appealed against conviction.

The prosecution case was that PWs 1, 2 and the appellant had been at a beer party
together with the deceased at PW’s farm. Later PW 1, the appellant and the deceased left
the beer party. According to the case for the prosecution, the three walked for some
distance before PW 1 branched off to proceed to his farm while the appellant and the
deceased, who stayed in the same village, proceeded on for their village. The case for the
prosecution was further to the effect that the appellant was the last person to be seen in
the company of the deceased when she was still alive on the evening of the 21st
September, 1980. The prosecution case was also to the effect that the appellant was
apprehended the following day by a group of people but later handed over to PW 3 and
the appellant’s father. PW 3, a court messenger by occupation, and the appellant’s father
interrogated the appellant and following upon what he had told them, the appellant later
took his father and PW 3 to an anthill, off the path, where they found the deceased’s half
naked body with bruises. The prosecution further relied for their case on a warn and
caution statement recorded by the police from the appellant admitted in evidence after a
trial-within-trial.

The appellant did not himself give evidence on oath in his defence, a course he was
entitled to take. He, however, called a medical doctor in his defence. The doctor’s
evidence was briefly that he was a consultant psychiatrist at Chainama Hills hospital. On
6th November, 1981 he examined the appellant as ordered by court. The doctor
explained that at the time of admission the appellant had a flattering effect on him. His
look was vacant and he was not sure about the dates, months and years. According to the
doctor the appellant complained of hearing some voices which he did experience while
in Kasama in 1979. According to the doctor one of the appellant’s brothers suffered
from mental illness. The doctor also explained that apart from him, other doctors and
clinical psychiatrists conducted some speed tests and that at the time the appellant was
found to smile or giggle on his own without cause. The doctor further stated that a Mr.
Mulenga also found the flat effect and retardation of mental effect on the appellant who

339
was taking too long or was too slow to think. The appellant according to the doctor,
stayed with them for one year and three months. About 11th March, 1983 he escaped
with other patients from Chainama Hills Hospital after he had improved. According to
the doctor the appellant was likely to have been mentally disturbed at the time of
committing the offence. The doctor was not cross-examined by the prosecution. The
court, however, put some questions to him. In answer to the court’s questions the doctor
said,:

“The aspect relating to the accused sleeping it off after killing

a human being and then report to an uncle the following day that the lady was dead
would suggest irrational mental effect on his part.”

The doctor’s full report was presented before the court. The conclusion in the report
reads as follows: (SIC)

“In my opinion Mr. Joseph M. Tobo suffers from Psychiatric

illness". It is one of the major psychiatric disorders where the patient holds a false belief
which is product of irrational thinking. As reported, prior to the alleged affect, he was
hearing some voices threatening him to kill him. These voices, he thought were coming
from deceased and there is a strong likelyhood that at the time of alleged offence was
mentally disturbed by his illness and acted on false belief. He now attends U.T.H.
psychiatric clinic from Lusaka remand prison and has shown satisfactory progress with
the prescribed medication. He does not hallucinate any more but in my opinion he would
require long term psychiatric follow up and care from an institution where the securities
are better.”

The learned trial commissioner, relying on the warn and caution statement and the
circumstantial evidence, found that the appellant assaulted the deceased sexually in the
course of which he strangled and killed her. The learned trial commissioner’s verdict
was finally based on the appellant’s conduct wherein he failed to tell anybody of the
death of the deceased bearing in mind that he was the last person seen in company of the
deceased and also being the person who led to the recovery of the deceased’s body. The
learned commissioner noted that the issue of insanity had been raised very late in the
proceedings. The court rejected the doctor’s opinion raising the defence of insanity.
After carefully examining the doctor’s evidence the learned commissioner stated in his
judgment:

“Here, I have recognised the raw material supplied to the doctor as pure deceit. The
opinion cannot therefore be correct. It is vacant. Let it be known from now on that the
real value of the evidence of a medical expert consists in the logical inferences which he
draws from what he had himself observed, not from what he merely surmises or has been
told by others (A.G.V. Nottingham corporation (1904) ch, 673: Metropolitan Asylum
Dist. V. Hill 474 T.29). The report lacks those logical inferences.
It has no value to this investigation. Quite apart from this
fault, the doctor blundered also when he mentioned what the accused said as to the facts
of the case. That was wrong and unacceptable. Averson v. Lord Kinnard 6 East 188),”

340
The learned trial commissioner concluded that the defence of insanity was faked and
could not be accepted. On behalf of the appellant Mr. S.K. Munthali filed three
additional grounds of appeal namely:

(1) That the learned trial commissioner misdirected himself by

failing to treat PW 1 as a witness with a possible interest of his own to serve whose
testimony should have been reported with caution;
(2) That the learned trial commissioner misdirected himself by
admitting the confession which was not proved beyond reasonable doubt to have been
made voluntarily and;
(3) That the learned trial commissioner misdirected himself by
failing to make a special finding under the provisions of Section 167 of the Criminal
Procedure Code based on the unchallenged evidence of PW 6, the Psychiatrist.

In his written heads of arguments the first and third grounds were argued together. But as
we see it, this appeal succeeds or fails depending on what view we take of ground three
which raises the defence of insanity. We must at this junction observe that the learned
Assistant Senior State Advocate appearing on behalf of the people did not take any
submissions in reply to the submissions made on behalf of the appellant apart from
informing the court he supported the conviction.

As regards ground one, namely that the learned trial commissioner misdirected himself
by failing to treat PW 1 as a witness with a possible interest of his own to serve whose
testimony should have been treated with caution, we are satisfied that this ground, on the
evidence on record was well taken. PW 1 and the appellant were the last persons seen in
company of the deceased when still alive the evening before her body was found in the
bush. He was therefore in a category of a suspect witness. The learned trial
commissioner never addressed his mind to this aspect anywhere in his judgment and not
even a mention of it was made. This, we agree, was certainly a misdirection.

The submission on ground two was that there was no direct evidence connecting the
appellant with the commission of the offence apart from the confession statement which
should in any event, have been excluded on the ground that during the trial-within-a-trial
only one witness was called when the allegation of assault was levelled at two police
officers. In the alternative, it was submitted that the learned trial commissioner should
have exercised his discretion to exclude the statement on the basis that shortly before the
confession was made the appellant was subjected to some force by messengers and
villagers. The case of Musongo v. The People (1) was cited in support of this alternative
submission. We hasten to observe that although there was no direct evidence connecting
the appellant with the offence there was in addition to the warn and caution statement
leading the prosecution witness to the recovery of the deceased’s body. But the calling of
the second prosecution witness in the trial-within-a-trial would have been desirable but
not necessary if the prosecution had already proved its case.

341
As regards the alternative submissions on ground two we note that the appellant was
interrogated, among others, by PW 3, a messenger by occupation, but what was said to
PW 3 was not part of the prosecution case. In the circumstances the authority of
Musongo case does not therefore assist the appellant.

We have examined the trial commissioner’s ruling in the trial-within-a-trial. We note

that to satisfy himself that the appellant made the statement he had to look at it. On
account of the details in the statement he was satisfied that the appellant made it. This, in
our view, was a wrong approach to the determination of the voluntariness of a challenged
statement. We have also noted that in his ruling the learned trial commissioner accepted
that the alleged torture of the appellant must have been before the police became involved
in the investigation, hence, the alleged torture could not have influenced him to make a
statement. Mr. Munthali’s submission is that the court should have exercised its direction
to exclude the statement on the ground that shortly before the confession was made the
appellant was subjected to some force. We are inclined to agree with this submission. In
this judgment the evidence of the confession will therefore be excluded.

One of the submissions on the main ground of appeal, namely the defence of insanity, is
that, before the trial started, the appellant was referred to Chainama hospital for
examination. The argument on this ground is that the trial commissioner’s observation
that the issue of insanity was raised very late in the proceedings was erroneous. We
agree with this submission. We also note from the record that PW 2 was cross-examined
at great length as to the appellant’s mental state. We further note that PW 3 was also
questioned at some lengthy by the court as to the mental condition of the appellant. In our
view this shows that before and during trial both the defence and court were anxious as to
the appellant’s mental condition at the time of the commission of the offence.

The learned trial commissioner rejected the doctor’s opinion on the basis that he was
supplied with “raw material” which was “pure deceit”. In our view, this was an incorrect
assessment and a serious misunderstanding of the doctor’s examination of the appellant
on which he based his opinion. We wholly agree with the commissioner that ‘the real
value of the evidence of a medical expert consists in the logical inferences which he
draws from what he had himself observed, “… but we would also like to accept that
when doctors examine a patient in the course of their duties, they make notes and that any
doctor would be able to make an opinion based on those notes.

In the instant appeal the crucial evidence of the doctor was that he is a consultant
psychiatrist. He talked to and examined the appellant. He made certain observations:
“flattening effect and vacant look.” The doctor had access to the tests carried on the
appellant by other doctors and clinical psychiatrists apart from what he himself carried
out. The doctor’s evidence was also to the effect that the appellant was likely to have
been mentally disturbed at the time of committing the offence. On the material that was
before him, the doctor said; “In my opinion Mr. Joseph M. Tobo suffers from
“Psychiatric illness………

342
On the material that was before the doctor we are unable to say that his opinion or his
report for that matter lacked logical inferences. There is nothing wrong or unacceptable
for a doctor to take into account what a patient has told him in forming his opinion, let
alone what other doctors have recorded about a patient. In our view the leaned trial
commissioner seriously misdirected himself in his analysis of the doctor’s evidence and
his opinion in relation to the defence of insanity.

In the case of Mushanga v The People (2) this court had had the opportunity of
considering the doctor’s evidence in relation to the defence of insanity. We said in that
case:

“On an issue of mental disability, the medical evidence

presented to the trial court may or may not be conclusive. However the court is bound to
consider the medical evidence together with all other relevant evidence. Its quality and
weight will be assessed in light of all the other facts and circumstances of the case. But,
as the cases which we have already mentioned indicate, medical evidence will usually be
considered to be more reliable than the assertions by or on behalf of an accused. In this
regard we are satisfied that the submissions, to the effect, that the doctor’s opinion in this
case should be over turned hold no attraction for us.”

In the instant appeal the finding that the opinion of the doctor was vacant was not
supported by the evidence, particularly nothing that the prosecution did not challenge his
opinion. We agree with the submissions on behalf of the appellant that on the balance of
probabilities the defence had proved that the appellant was suffering from a disease of the
mind at the time of the commission of the offence. We are satisfied on the other hand
that, even if the confession was excluded the circumstantial evidence adequately
connected the appellant with the commission of the offence. For the reasons we have
stated we enter a verdict of not guilty by reason of insanity and order that the appellant be
detained at the President’s pleasure. To that extent the appeal is allowed. It also follows
that the decision reported at (1985) ZR.158 is over ruled.

Appeal allowed.

343
THE PEOPLE v NELSON MBEWE (1980) Z.R. 246 (H.C.)

HIGH COURT
KAKAD, COMMISSIONER.
11TH JULY, 1980
HPR/250/80

Flynote

Criminal law and procedure - Insanity - Defence of - Procedure to be followed - Criminal

procedure Code, Cap. 160, ss. 161 (2) (b) and 167.

Headnote

The accused was charged in the subordinate court with malicious damage to property. He
pleaded insanity. The magistrate after hearing the evidence of both sides and determining
that the accused was at the time suffering from a mental illness held that the evidence as
it stood justified a conviction. He ordered the accused to be detained under the President's
pleasure pursuant to s. 162 (2) (b) of Cap. 160 subject to confirmation by the High Court.

Held:

(i) The proper findings should have been that on the evidence as it stood it would
justify a special finding under s. 167 of the Criminal Procedure Code, Cap. 160.

Cases referred to:

(1) Mbaye v The People (1975) Z.R. 74.

Legislation referred to:

344
Criminal Procedure Code, Cap. 160 ss. 161, (2) (b) and 167.

1980 ZR p247
KAKAD Commissioner

The accused Nelson Mbewe was charged, in the subordinate court of first class at
Chipata, with malicious damage to property.
____________________________________
Judgment

KAKAD, COMMISIONER:

On 21st April, 1980, the accused when before the court for plea pleaded:

"I understand the charge and I admit it I did damage one tape
recorder for my young brother. I damaged it because of the troubles I usually have with
the complainant and because of my mental illness and I did not realise what I was
doing until when I was taken to the Police Station."

Thereupon the learned magistrate ordered the accused to be medically examined to

ascertain his mental condition and adjourned the case to 30th. April, 1980.

On 30th April, 1980, the accused was before the court. A medical report dated 23rd
April, 1980, was produced. In the doctor's opinion the accused was suffering from
chronic psychotic mental illness and therefore was unfit to stand trial. Consequently the
learned magistrate found the accused incapable of making a defence, entered a plea of not
guilty and proceeded to deal with the accused under the provisions of s. 161 (1) of the
Criminal Procedure Code.

The learned magistrate after hearing the evidence for the prosecution and the evidence for
the accused determined that the accused at the time was suffering from a mental illness
and that he was so suffering at the time he damaged the tape recorder. The relevant part
of the learned Magistrate's finding reads:

"From the foregoing evidence, I find as a fact that the accused

did damage the exhibited tape recorder on 18th April, 1980, and that he did so by
smashing it with a hoe. I also find as a fact that the accused suffers from a mental illness
and that he was suffering from the illness at the time he damaged the tape recorder. I am
satisfied that the evidence as it stands, would justify a conviction. In accordance with
Section 162 (2) (b) of Cap. 160, I order that the accused be detained under the President's
Pleasure, subject to confirmation by the High Court."

The learned magistrate's finding was that on the evidence before the court there was
evidence to justify the accused's conviction. The case was submitted to me for
confirmation of the order of detention during the President's pleasure as required to be
confirmed under s. 162 (1) (a) of Cap. 160. On reading the evidence on record I consider

345
that the learned magistrate's finding that the accused's conviction was justified, was not
supported by the evidence and therefore erroneous. I set down the case for review in
open court. In the opinion of the learned Senior State Advocate, the trial was a nullity
because the magistrate had failed to adhere strictly to the provisions of s.161 of Cap. 160.
These veiws were supported by the learned legal aid counsel for the accused.

1980 ZR p248
KAKAD Commissioner

At one stage I had entertained similar views as expressed by learned counsel. However
after having carefully examined the provisions under ss. 160 and 161 of the Criminal
Procedure Code, Cap. 160, and having perused the Supreme Court judgment in Mbaye v
The People (1) at p. 77, I find that the procedure and the steps followed by the learned
magistrate in this case were proper and in strict compliance with the above mentioned
provisions of Cap. 160 and as recapitulated in Mbaye's case (supra).

From the evidence of the prosecution witnesses PW1 and PW2, it is evident that the
accused at the time he damaged the tape recorder in question, was suffering from a
mental illness which, it appears, had disabled him from knowing what he was doing was
right or wrong. This fact was neither rebutted nor questioned by the prosecution.
In my view the learned magistrate, in order to arrive at a finding that on the evidence the
accused's conviction was justified, was required to satisfy himself and find, beyond
doubt, that on the evidence produced there was no defence of any kind, either open or
available to the accused.

That apparently was not the case. The defence of insanity at the time of the offence under
s. 167 (1) of Cap. 160 was clearly pleaded by the accused and supported by the evidence.
The defence of insanity was therefore obviously open to the accused.
Section 161 (2) (b) of the Criminal Procedure Code, Cap. 160, reads:

"(2) At the close of such evidence as is mentioned in sub-

section (1) the Court, if it finds that the evidence as it stands -

(b)would, in the absence of further evidence to the

contrary, justify a conviction, or a special finding under Section one hundred and sixty-
seven, shall order the accused to be detained during the President's pleasure."

The above provisions of s. 161 (2) (b) clearly provides that where a court finds an
accused incapable of making a proper defence and where the court conducts the trial
under s. 161 (1) of Cap. 160, it would be open to the court to make a finding that the
evidence justified a conviction or a special finding under s. 167 of Cap. 160, and
thereafter to order the detention of the accused under s. 161 (2) (b) of Cap. 160.

The learned magistrate on the evidence had, I find, erred in finding that the evidence
before the court justified the accused's conviction. The proper finding should have been
that on the evidence as it stood it would justify a special finding under s. 167 of Cap. 160.

346
I therefore set aside the learned magistrate's finding that on the evidence as it stood it
justified the accused's conviction, and substitute therefore a finding that the evidence as it
stood would justify a special finding under s. 167 of the Criminal Procedure Code, Cap.
160. This finding in no way affects the accused's detention during the President's pleasure
under s. 161 (2) (b) of Cap. 160.

In the result I confirm the order that the accused be detained during the President's
pleasure.

Order accordingly

DERRICK CHITALA (Secretary of the Zambia Democratic Congress) v

ATTORNEY GENERAL (1995) S.J.

SUPREME COURT
NGULUBE, C.J., BWEUPE, D.C.J AND SAKALA, J.S.
20TH OCTOBER AND 1ST NOVEMBER, 1995
S.C.Z. JUDGMENT NO. 14 OF 1995
APPEAL NO. 92 OF 1995

Flynote

Constitution - Adoption of Constitution by the National Assembly - Whether this

reflected the will of the people.
Judicial review - Leave for Judicial Review denied - Renewal of application before the
Supreme Court.
Grounds for Judicial Review - Illegality - Irrationality - Procedural impropriety -
Unreasonableness.

Headnote

The President, Acting under s.2 of the Inquiries Act, Cap 1981, appointed a Commission
to be chaired by the learned John Mwanakatwe, SC. To this end, the Commission
travelled around the country collecting views from the Zambian people. At the end of the
exercise, the Commission formulated a draft constitution most of whose provisions the
government refused to accept. Instead the government drafted a constitution with
controversial clauses in it and sent it to Parliament for enactment and subsequent
adoption. The Commission had recommended that the Constitution be adopted by a
constituent assembly and national referendum. The appellant, in an effort to challenge the
government's decision, sought leave to apply for judicial review of the goverment's

347
decision to have the Constitution adopted by parliament. The High Court denied leave
and the appellant appealed to the Supreme Court.

Held:

(i) Although the application was neither frivolous nor vexatious, it was legally an
untenable application on the face of it such that it was not wrong for the judge
below to refuse leave summarily

(ii) The applicant had sufficient interest in the matter

Cases referred to:

1) Ridge v Baldwin (1964)
2) Mwamba and Another v Attorney General (1993) 3 L.R.C.
166; S.C.Z. Judgement No. 10 of 1993
3) Council of Civil Service Unions and Others v Minister for the
Civil Service
4) Patriotic Front ZANU v Minister of Justice, Legal and
Parliamentary Affairs (1986) L.R.C. (const.)672
5) Leonard Kafunda v The Attorney General and Another,
Appeal No. 20 of 1992
6) Padfield v Minister of Agriculture, Fisheries and Food (1968)
A.C. 997
7) Associated Provincial Picture Houses Ltd v Wednesbury
Corporation (1948)IK.B. 223
8) Reg. v Home Secretary, Ex.p Brind 21WLr of 22nd February
1991, 588 at 601

For the Appellant: R. Simeza and J. Sangwa, of Simeza Sangwa and Associates
For the Respondent: S. L. Chisulo, Solicitor General, and A. G. Kinariwala,
Principal
State Advocate
___________________________________________
Judgment

NGULUBE, C.J.: delivered the judgement of the court.

Under the Supreme Court of Zambia Act, this is an appeal against the decision of a High
Court Judge refusing to grant leave to bring judicial review proceedings. Under the
Rules of the Supreme Court of England which apply to supply and cassus omissus in our
own rules of practice and procedure, this would be a renewal of the application for leave
to the appellate court. The issue was whether the learned judge below was wrong to
refuse to grant leave and whether we should now do so in the particular circumstances of
this case.

348
The facts and circumstances of the case appear to be common cause, and are to be
distilled from the Notice of application for leave to apply for judicial review, the affidavit
filed in support, and the report of the constitutional Review Commission ( the
Mwanakatwe Commission) together with Government Paper No. 1 of 1995 (the White
Paper).

The last named two documents were not filed with the court which was requested to take
judicial notice of these published public documents. The Notice of Application is worth
reproducing and was in the following terms:

“Name of Applicant: The Zambia Democratic Congress

(ZDC) a political party constituted pursuant to the provisions of the Societies Act.

Judgement, order, decision or other proceeding in respect of

which relief is sought:

The decision by the President and his Cabinet to have the next
Constitution enacted by the present National Assembly

Relief Sought:
1. an order of certiorari to remove into the High Court for the
purpose of quashing the decision by the President and his Cabinet to have the next
constitution enacted by the present National Assembly.

2. An order of mandamus directed to and compelling the

President and his Cabinet to take such measures as may be necessary to ensure that the
constitution is debated by and finally determined by a constituent assembly or any other
broad based group and subjected to a referendum

3. If leave to move is granted, a direction that such grant

should operate as a stay of the implementation of the decision to which this application
relates pursuant to Rule 3(10) (a) of Order 53 of the Rules of the Supreme Court.

4. An order for costs

5. And that all necessary and consequential directions be

given.

Grounds on which Relief is sought.

1. The decision to have the Constitution enacted by the

current National Assembly has been made in bad faith, it is calculated and designed to
enable the present Government to single handedly determine the constitution, which will
favour it and disadvantage other interested parties.

349
 2. The decision has been made in bad faith in that it is
contrary to the recommendations made by the Mwanakatwe Constitution Commission
after touring the country and receiving submissions from the people.

3. By virtue of this decision the President and his Cabinet

have acted unfairly and unreasonably in that they have totally ignored the
recommendations of the commission arrived at after receiving submissions from the
people and taking into account the need for legitimacy and durability of the Constitution.

4. The decision to have the constitution enacted by the

present National Assembly as opposed to the Constituent Assembly and a referendum, is
not in furtherance of the general objectives and purposes of the Inquiries Act and Terms
of reference No. 1 and 9.

5. That the decision to have the Constitution enacted by the

National Assembly has been made in bad faith in that the objective is not to ensure the
legitimacy and durability of the constitution by for the President and his Cabinet to
determine aConstitution which will further their own interests at the expense of those of
the broad majority of the people.”

It was not in dispute that the President, Acting under S.2 of the Inquiries Act, CAP 1981,
appointed a Commission to be chaired by the learned John Mwanakatwe, SC. The terms
of reference should be referred to for their full import but for present purposes, the
appellant drew particular attention to terms (1) and (9) which were in the following
terms:

“To (1) collect views by all practical means from the general
public both in rural and urban areas and from Zambians living outside Zambia, on what
type of Constitution should enact, bearing in mind that the constitution should exalt and
effectively entrench and promote legal and institutional protection of fundamental human
rights and stand the test of time;

(9) recommend on whether the Constitution should be

adopted by the National Assembly or by a Constituent Assembly, by a National
Referendum or by any other method;

The Mwanakatwe Commission’s finding and recommendation on term of reference No. 9

is to be found at page 204 of the report under the heading “Mode of adopting the
constitution” and the subheading “Legitimacy and the Constitution”. For the sake of
completeness, it is worthwhile quoting the whole of that finding and recommendation
which reads:

“The Government directed the Commission in Term of

Reference No. 9 to recommend the best method of adoption of the Constitution. In the
Commission’s view there are three methods of adoption, namely by the current
legislature, the Constituent Assembly and a national referendum. In evaluating the best

350
method of adoption the Commission addressed itself to the need for legitimacy and
durability of the Constitution and the views of the people.

In this latter regard, petitioners were overwhelmingly agreed

that the Constitution should be adopted through the Constituent Assembly and a national
referendum. Adoption by the current legislature was the least favourable because of the
dangers of a one party dominance and a repetition of the past experiences in formulation
of the Constitution.

In agreeing with the overwhelming views of petitioners and

the rationale or reasons advanced, the Commission finds it unavoidable and compelling
to recommend unanimously adoption by a Constituent Assembly and a national
referendum.”

The reaction of the Government to this part is to be found on pages 104 to 106 of the
white paper where, after rejecting the recommendations, the Government pointed out a
number of what were called “legal and practical limitations of the difficulties
necessitating a rejection of the recommendation and they should be read for their full
terms and effect. For present purposes, we quote only the conclusion at page 106 where
the Government said:

“As a consequence of the above, the Government has

decided:
(a) to encourage public discussion of both the
Commission Report and Draft Constitution in order to arrive at the broadest possible
consensus on the content of the Proposed Constitution

(b) that with the exception of the provisions in the Draft

Constitution touching on Part III of the existing Constitution, all other parts of the Draft,
on which a consensus will have been reached should be enacted by the existing
Parliament.

(c) That provisions in the Draft Constitution seeking to

amend, modify re-enact or replace any provisions relating to the Fundamental Human
Rights will be enacted by Parliament following their approval through a National
Referendum.”

We have taken the trouble to set out the background facts in some detail in order to place
in proper context the legal arguments and issues that arose in this case. When counsel for
the appellant appeared before the learned High Court judge, he simply relied on the
notice of application and supporting affidavit, together with the provisions of Order 53,
and invited the learned judge to grant leave. The judge declined to do so holding that the
two reliefs specifically claimed, namely Certiorari and Mandamus were not available
against the President and his Cabinet. In the case of certiorari, the learned judge was of
the opinion that it could not lie against a body or authority not exercising a judicial or
quasi-judicial function. Accordingly, it was held that an order could not be made

351
directing that the records of a Cabinet meeting or of the President be brought to court for
the purpose of quashing them. In the case of mandamus, the learned judge was of the
opinion that the White paper contained mere proposals which could not be regarded as
raising a binding duty which the court could order anybody to perform.

The major ground of appeal alleged a misdirection on the part of the court below
allegedly by determining the substantive application before leave was granted and
without hearing the parties. It was argued that all that had to be shown at the stage of
considering leave was whether the applicant had a sufficient interest; whether there was a
sufficiently arguable case to merit investigation at a substantive hearing and whether the
application had been made promptly. Whether one agrees with the learned judge’s
argument on certiorari and mandamus or not, one must agree that the judge was engaged
in discussing the second issue, that it , whether there was any point in granting leave.
Both sides referred us to the observations made by the learned authors of the White Book,
the Rules of the Supreme Court. In vol. 1 of the 1995 Edition at page 864 under Order
53/1-14/30m the learned authors have this to say:

“The purpose of the requirement of leave is: (a) to eliminate

at an early stage any applications which are either frivolous, vexatious or hopeless and
(b) to ensure that an applicant is only allowed to proceed to a substantive hearing if the
court is satisfied that there is a case fit for further consideration (see below).

The requirement that leave must be obtained is designed to

“prevent the time of the court being wasted by busybodies with misguided or trivial
complaints of administrative error, and to remove the uncertainty in which public officers
and authorities might be left as to whether they could safely proceed with administrative
action while proceedings for judicial review of it were actually pending even though
misconceived” (R. v Inland Revenue Commissioners, ex p National Federation of self-
employed and Small Business Ltd (1982). A.C. 617, p.642. (1981)2All E.R. 93, P.105
per Lord Diplock). Leave should be granted, if on the material then available the court
thinks, without going into the matter in depth, that there is an arguable case for granting
the relief claimed by the applicant (ibid. at p.644/106). In R.v Secretary of State for the
Home Department, ex p. Rukshanda Begum (1990) c.o.d.107, the court of Appeal held
that the test to be applied in deciding whether to grant leave to move for judicial review is
whether the judge is satisfied that there is a case fit for further investigation at a full
interpartes hearing of a substantive application for judicial review (see par 53/1-14/34).
If, on considering the papers, the Judge cannot tell whether there is or not, an arguable
case, he should invite the putative respondent to attend the hearing of the leave
application and make representations on the question whether leave should be granted
(ibid.).”

We have no reason to disagree with the foregoing. The judge below can not validly be
criticised for forming an opinion on the papers before him without hearing the parties.
whether he was correct or not in his conclusion is a different question which we are
capable of addressing since an appeal operates as a rehearing on the record. A renewal of
the application would also be to the same effect. To the extent that the learned High

352
Court judge chose to decide the question whether there was disclosed a sufficient case to
warrant further investigation at a full inter parte hearing by characterising the functions as
a non judicial and the decision as simply a proposal, we choose to go at large in order to
do fuller justice to this case. After all, since Ridge v Baldwin (1), the distinction between
judicial and administrative activities has been swept away and as a general proposition
judicial review now lies against inferior courts and tribunals and against any persons or
bodies which perform public duties or functions. There is, of course, no blanket
immunity from judicial review even for the President: see Mwamba And Another v
Attorney General (2)

It is trite that judicial review has supplanted the old proceedings for the prerogative writs
of mandamus, prohibition and certiorari. These orders can now be obtained from acting
in an office to which he is not entitled or a declaration and/or injunction in any matter of
a public nature suitable for judicial review. Rather than look at the prerogative remedies
in the old classical style, it is, in our considered opinion, preferable to adopt the current
trends as proposed by cases such as Council of Civil Service Unions and others v
Minister for the civil Service (3). A formulation which has gained much acceptance in
the commonwealth was that proposed by Lord Diplock who said, from letter d at page
1026 to letter b at page 1027:

“Judicial review has I think developed to a stage today when

without reiterating any analysis of the steps by which the development has come about,
one can conveniently classify under three heads the grounds upon which administrative
action is subject to control by judicial review. The first ground I would call “illegality”,
the second “irrationality” and the third “procedural impropriety”. That is not to say that
further development on a case basis may not in course of time add further grounds. I
have in mind particularly the possible adoption in the future of the principle of
“proportionality” which is recognised in the administrative law of several of our fellow
members of the European economic Community; but to dispose of the instant case the
three already well established heads that I have mentioned will suffice. By “illegality” as
a ground for judicial review, I mean that the decision maker must understand correctly
the law that regulates his decision making power and must give effect to it. Whether he
has or not is par excellent a justifiable question to be decided, in the event of dispute, by
those persons, the judges, by whom the judicial power of the state is exercisable.

By “irrationable” I mean what can by now be succinctly

referred to as “Wednesbury unreasonableness (Associated Provincial Picture Houses Ltd
v Wednsbury Corporation (1948) IKB “”£. It applies to a decision which is so
outrageous in its defiance of logic or of accepted moral standards that no sensible person
who had applied his mind to the question to be decided could have arrived at it. Whether
a decision falls within this category is a question that judges by their training and
experience should be well equipped to answer, or else there would be something badly
wrong with out judicial system. To justify the court’s exercise of this role, resort I think
is today no longer needed to Viscount Radcliffe’s ingenious explanation in Edwards v
Bairstow (156) Ac 14 of irrationality as a ground for a court’s reversal of a decision by
ascribing it to an inferred though unidentifiable mistake of law by the decision-maker.

353
“Irrationality” by now can stand upon its own feet as an accepted ground on which a
decision may be attacked by judicial review.

I have described the third head as “procedural impropriety”

rather than failure to observe basic rules of natural justice or failure to act with procedural
fairness towards the person who will be affected by the decision. This is because
susceptibility to judicial review under this head covers also failure by an administrative
tribunal to observe procedural rules that are expressly laid down in the legislative
instrument by which its jurisdiction is conferred, even where such failure does not
involve any denial of natural justice. But the instant case is not concerned with the
proceedings of an administrative tribunal at all.”

The above has been cited with approval in a number of cases, including the Zimbabwean
case of Patriotic Front Zanu v Minister of Justice, Legal and Paliamentary Affairs (4).
We too respectfully agree with Lord Diplock’s three grounds on the review ability of
decisions taken under, in our case, Executive prerogative. What we said in the
unreported case of Leonard Kafunda v the Attorney General and Anther (5) which the
learned solicitor General cited, though not so comprehensive, was consistent with this
general formulation to the extent that we had identified some grounds for judicial review
based on want or excess of jurisdiction, error or law, breach of natural justice and legal
unreasonableness.

We heard strong public spirited submissions in support of the Mwanakatwe

Commission’s recommendation and against the Government’s preference as expressed in
the white paper. We have to be guided by the three grounds enunciated by Lord Diplock
and will not be able to say whether from any other point of view the Government is
making a mistake or failing to grasp the opportunity to fashion a constitution that will not
be considered as tailor-made for some immediate convenience. It would be wholly
improper for the court to make any such political comment or to try and substitute its own
view for that of the Government under the guise of judicial review. Our immediate task
is to resolve, against the backdrop of the three grounds, whether leave should be granted
or if, though obviously not frivolous or vexatious, the application is legally hopeless such
that we are satisfied that there is no case fit for further investigation at a full inter parte
hearing.

We begin by considering whether there is on the face of it an arguable case of illegality.

Section 2(1) of the Inquiries Act, Cap. 181, reads:

“2 (1) The President may issue a commission appointing one

or more commissioners to inquire into any matter in which an inquiry would, in the
opinion of the President, be for the public welfare.”

The Act does not say what the President must do once a commission renders its report on
a matter. However, it is quite clear from the language of the stature which we have
quoted that a commission can only lawfully be appointed to promote the public welfare.
In this regard, a decision arising from the report of a commission could be challenged

354
quite legitimately if the decision frustrated the policy and the objects of the Act since a
decision which does not promote but frustrates the object of the law would be an
improper exercise of a discretion: see Padfield v Minister of Agriculture ture,Fisheries
and Food (6). The question which arises is whether the Executive, that is to say the
President and the Cabinet in this case, in exercising their discretion as set out in the white
paper (relevant portions of which we have alluded to) exceeded the statutory powers
under the Inquiries Act? It is obvious that this is not the case. What is more, the white
paper showed that the Government has not sought to frustrate the object of the Inquiries
Act but has suggested to address the concerns of the applicants and many other citizens
by the decisions at page 106 of the white paper which we have already quoted. There
was in this case no issue of illegality fit to be left to a full hearing.

Next is the question of irrationality. We heard submissions that the decision not to set up
a constituent assembly, which flew in the teeth of the recommendation of the
commission, was unreasonable and was actuated by bad faith and improper motives. In
law, a decision can be so irrational and so unreasonable as to be unlawful on “Wedsbury”
grounds 00 see Associated Provincial Picture House LTD v Wedsbury Corporation (7).
The principle can be summarised as being that the decision of a person or body
performing public duties or functions will be liable to be quashed or otherwise dealt with
by an appropriate order in judicial review proceedings where the court concludes that the
decision is such that no such person or body properly directing itself on the relevant law
and acting reasonably could have reached that decision. This principle should be applied
with circumspection.

In this regard, the words of Lord Ackner in Reg v Home Secretary, Ex.p. Bring (8) are
rather apt. He said:

“There remains however the potential criticism under the Wednesbury grounds expressed
by Lord Greene M.R. (1948) 1 K.B. 223, 230 that the conclusion was “so unreasonable
that no reasonable authority could ever have come to it.” This standard of
unreasonableness, often referred to as “the irrationality test,” has been expressed in terms
that confine the jurisdiction exercised by the judiciary to a supervisory, as opposed to an
appellate, jurisdiction. Where Parliament has given to a minister or other person or body
a discretion, the court’s jurisdiction is limited, in the absence of a statutory right of
appeal, to the supervision of the exercise of that discretionary power, so as to ensure that
it has been exercised lawfully. It would be a wrongful usurpation of power by the
judiciary to substitute its, the judicial view, on the merits and on that basis to quash the
decision. If no reasonable minister properly directing himself would have reached the
impugned decision, the minister has exceeded his powers and thus acted unlawfully and
the court in the exercise of its supervisory role will quash that decision. Such a decision
is correctly, though unattractively, described as a “perverse” decision. To seek the
court’s intervention on the basis that the correct or objectively reasonable decision is
other than the decision which the minister has made is to invite the court to adjudicate as
if Parliament had provided a right of appeal against the decision that is, to invite an abuse
of power by the judiciary.”

355
A perusal of the relevant documents and consideration of the arguments does not support
that there is an issue of irrationality fit to go to a full hearing. There was here the danger
of the court merely substitution its own views when the term of reference invited
suggestions; the report observed that there were three possible methods of adoption and
recommended on very good grounds one method. The Government game a number of
reasons for wanting to proceed in a different manner. We can not say such reasons were
“Wednesbury” unreasonable.

This brings us to consider whether there was any procedural impropriety. This aspect
does not arise since the case is not concerned with the proceedings of an administrative
tribunal at all. The Inquiries Act does not lay down any procedural rules to be observed
by the President once a report has been rendered to him. There was thus nothing fit to be
referred for further inquiry at a full hearing under this ground.

From the documents in this case, there could not have been a problem in finding that the
appellant had a sufficient interest in the matter. The formulation of a new constitution or
causing major amendments to the existing constitution is a matter of serious interest to all
the citizens, including the members of the political party represented by the appellant.
There was also no issue of promptness or tardiness since the application was made within
a reasonable time after the release of the white paper. The sole issue could only have
been whether or not there was disclosed, to borrow the words of learned counsel, a
sufficiently arguable case to merit investigation at a substantive hearing.

We suspect that the generally negative and argumentative tone adopted by the white
paper provoked the reasonable apprehension in the appellant that the Government
intended to massage the outcome of the review, to the disadvantage of the others in the
country. However, on the specific points raised in the case and on the portion of the
white paper relevant to the same which we have earlier quoted, it is apparent that the
Government has neither slammed the door nor taken the position that the people’s views
will not find a place in the final product which would otherwise be discredited and
transient, and not enduring as planned. Above all, for the reasons we have discussed,
although the application was neither frivolous nor vexatious, it was legally an untenable
application on the face of it such that it was not wrong for the judge below to refuse leave
summarily.

For the reasons we have adumbrated, the appeal is unsuccessful. However, since it raised
for the first time a matter of general public importance of this nature, each side will bear
its own costs.

Appeal dismissed.

356
GASTOVE KAPATA v THE PEOPLE (1984) Z.R. 47 (S.C.)

SUPREME COURT
SILUNGWE, C.J., MUWO, J.S., BWEUPE ,A.J.S.
7TH DECEMBER 1982 AND 8TH JUNE, 1984
(S.C.Z. JUDGMENT NO. 9 OF 1984)

Flynote

Evidence - Judicial Notice - Personal knowledge - Public road - General rule.

Headnote

At the close of the trial, there was no evidence to prove that the road on which the
offence was committed was a public road. The fact that the said road was a public road
was a necessary element of the charge. The court took judicial notice of the road and held
that it was a public road; and convicted the accused.

The accused appealed.

Held:

(i) In so far as the utilisation of personal knowledge is concerned, the general rule
is that a court may, in arriving at its decision in a particular case, act on its own
personal knowledge of facts of a general nature, that is notorious facts relevant
to the case.

357
(ii) The Commissioner being a resident of Kitwe was entitled to make use of his
personal knowledgeof a general matter, that is of a notorious matter, namely,
that the road in question was public road to which the public had access.

Cases referred:
(1) R. v Spurge, [1961] 2 ALL E.R. 688.
(2) Daimon Lungu v The People, [1977] Z.R. 208 at 210.
(3) Reymonds v Llanelly Associated Tin-plate Co. Ltd. [1948] 1
All E.R. 140.
(4) Hubert Sankombe v The People, (1977) Z.R. 127.

For the appellant: B.B. Kaweche, of Ellis and Company.

For the respondent: R.G. Patel, Assistant Senior State Advocate.
__________________________________________
Judgment

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

The appellant was convicted by the High Court at Kitwe of causing death by dangerous
driving, the allegation being that on May 23rd, 1980, at Kitwe, he caused the death of
Brown Sandu by driving a Fiat truck registration No. AAD 2727, on a road, namely,
Hubert Stanely Drive, at a speed or in a manner which was dangerous to the public,
having regard to the circumstances of the case, including the nature, condition and the use
of the road and the amount of traffic which was actually at the time or which might have
been reasonably expected to be on the said road. He was sentenced to a term of
imprisonment for five years

p48

and an order was made for the endorsement and suspension of his driving licence a
period of two years. He now appeals against the said conviction and sentence.

It is not in dispute that, on May 23rd, 1980, the appellant - a driver employed by
ZAMTAN Road Services Limited at A Depot in Kitwe-was driving, unaccompanied, a
Fiat truck registration number AAD 2727, along Hubert Stanely Drive which is located in
Chimwemwe Township, Kitwe; and that, as he came to a bend, he failed to negotiate it
and so careered off the road, flattened a wire fence and eventually came to a halt upon
partially demolishing a house and thereby killing Brown Sandu, a two-and-half year old
boy, who happened to be inside the house at the time. The house belonged to the
deceased child's parents.

What is in dispute is whether the Fiat truck developed mechanical defect at the material
time; and whether Hubert Stanely Drive was a public road. These defences were
unsuccessfully canvassed at the appellant's trial by Mr Kaweche who now presents them
as the sole grounds of appeal against conviction.

358
As to the first ground of appeal, it is trite law that, for the defence of mechanical defects
to succeed, the danger must have been created by a sudden loss of control in no way
attributable to any fault on the part of the driver. As Salmon, J., put it in the celebrated
English case of R. v Spurge (1 ) at page 691, letter E:

"The essence of the defence is that the danger has been

created by a sudden total loss of control in no way due to any fault on the part of the
driver''.

Once there is evidence of a mechanical defect which the driver neither knew of nor ought
to have known about, it is then for the prosecution to rebut it. However, once it is shown
that the driver knew or ought to have known of the mechanical defect, as in Daimon
Lungu v The People (2), he cannot avail himself of the defence, for no reasonable
prudent and competent driver will knowingly drive a motor vehicle with a worn tyre,
defective steering, or defective brakes.

In the present case, the defence is that there was a sudden mechanical defect, both in the
steering mechanism, as well as in the braking system. After carefully considering the
deference the trial court found it untenable and so rejected it for the reasons that the
steering mechanism had been examined by the first prosecution witness, Inspector
Mukumbuta Mufwano Wamulume shortly after the accident, and been found to be in
good working order; and that, although the witness had not been able to examine the
brakes "because of the damage", the tyre marks left on the road by the Fiat truck, were in
themselves sufficient evidence to show that the brakes had been applied and that they
were in good working order at the material time. Indeed, it seems probable that the
appellant's allegation as to defective brakes was an afterthought-hired for the first time at
his trial-because, when he freely gave a warn and caution

p49

statement to the police (which statement was later admitted in evidence without any
objection thereto), his only defence then, was that there had been a sudden defect in the
steering mechanism.

The trial court cannot, in our view, be faulted on any of the findings referred to above as
those findings were amply supported by the evidence on record. The appellant cannot,
therefore, avail himself of his double edged defence of sudden mechanical defect and so
his appeal based on this ground is unsuccessful.

We are satisfied, as the trial court found, that the cause of the fatal accident was due to
the appellant's excessive speed, at the material time, which led to the appellant's loss of
control of the motor vehicle and the deceased's demise. His testimony that he had been
doing 25-30 Km. per hour could not reasonably be true and was, therefore properly
rejected since it is inconceivable that a motor vehicle travelling at 25-30 Km. per hour
could have so gone out of control as to leave behind tyre marks of the type testified to in
this case; jump over a trench, as the trial court found flatten a wire fence of one house

359
and then partially demolish the house of the deceased's parents, and cover a distance of
67.4 metres after having left the road. Clearly, the ingredients of dangerous driving were
satisfied.

The second ground of appeal is that there was no evidence at the trial to prove that
Hubert Stanely Drive was a public road. There is merit in this submission as the
prosecution did not expressly adduce evidence to that effect. The trial court found this to
be the position but, after referring to a passage in Wilkinson on Road Traffic Offences,
took judicial notice of the road and held that it was a public road. The following passage
appears in its judgment:

"The road in question, although the state was silent on this

issue, is a highway and is named Hubert Stanely Drive. The defence does not dispute that
the accused drove on Hubert Stanely Drive... Wilkinson on Road Traffic Offences, 8th
edition says: "Road means any highway and any other road to which the public has
access and includes bridges over which a road passes'. It is common knowledge that this
Hubert Stanely Drive is a highway and is permanently dedicated for the use by the
public."

The question that we must now address ourselves to is one whether the trial court was
entitled to take judicial notice of the road in question and to hold that it was a public road.

It is trite law that judicial notice is the cognisance taken by the court itself of certain
matters which are so notorious, or clearly so established, that the need to adduce evidence
of their existence is deemed unnecessary. This is simply a common sense device by
which the court's time and the litigant's expenses are saved. It is important, however, that,
in taking judicial notice of (notorious) facts, courts should proceed with caution. Thus, if
there is room for doubt as to whether a fact is truly notorious, judicial notice should not
be taken of it.

p50

Insofar as the utilisation of personal knowledge is concerned, the general rule is that a
judge may, in arriving at his decision in a particular case, act on his personal knowledge
of facts of a general nature, that is, notorious facts relevant to the case.

In Reynolds v Llanelly Associated Tin - Plate Company Limited (3) the Court of Appeal
in England held that, although the County Court Judge was entitled, within limits, to take
into account his own knowledge of general conditions in the neighbourhood, he had gone
too far in making use of his personal knowledge of the prospects of a workman of a
particular age and skill. Lord Greene, M.R. said at page 142, letter F:

"The practice of county court judges of supplementing

evidence by having recourse to their own local knowledge and experience has been
criticised, praised as most beneficial, objected to, and encouraged in different decisions."

360
In answering the question as to what extent a judge may use his personal knowledge of
general matters, we said in Hubert Sankombe v The People (4) at page 129, line 36:

"The extent to which a judge may use his personal knowledge

of general matters has not been clearly defined. As Cross on Evidence, 4th edition, puts it
at page 141 - within reasonable and proper limits a judge may make use of his personal
knowledge of general matters . . . no formula has yet been evolved for describing those
limits.''

There can be no doubt that, in the instant case, the learned Commissioner of the High
Court was entitled to use his knowledge of general matters relevant to the case. The
question is: can it be said that in so doing he exceeded his "reasonable and proper limits"?
We do not think so. The learned Commissioner being himself a resident of Kitwe and
familiar with the environment there, was entitled to make use of his personal knowledge
of a general matter, that is, of a notorious matter, namely, that Hubert Stanely Drive-a
road situated in the local authority township of Chimwemwe-was a public road to which
the public had access. Accordingly, we are satisfied that the learned Commissioner did
not exceed his reasonable and proper limits in the matter. For the reasons given, this
ground of appeal also fails.

In the final analysis, the appeal against conviction is dismissed.

On the question of sentence, Mr Kaweche's submission is that as the appellant was a first
offender, he was entitled to be given an option of a fine, rather than a custodial sentence.
In Lungu (2) we said at page 211 that, as we could not describe the appellant's driving as
reckless or in wilful disregard of the safety of other road users, a fine should have been
imposed in the circumstances of that case. That case is distinguishable from the present
one in that, here, the appellant was clearly guilty of recklessness and wilful disregard of
the safety of other road users, it being immaterial that the deceased's death occurred off
the road. Having said this, we are unable to hold that the trial court was wrong

p51

to impose a custodial sentence. However, as the appellant was a first offender, he was
entitled to some degree of leniency. In the circumstances, we regard as severe the
sentence of 5 years I.H.L., which is the maximum in a case of this nature. The sentence is
set aside and, in its place, the appellant is ordered to serve 30 months IHL with effect
from 19-3-82. The other orders will remain undisturbed. To this extent, therefore, the
appeal against sentence succeeds.

Appeal against sentence allowed

361
CHRISTINE MULUNDIKA AND 7 OTHERS v THE PEOPLE (1995) S.J.

SUPREME COURT
NGULUBE, C.J, BWEUPE, D.C.J., CHAILA, CHIRWA AND MUZYAMBA, JJ.S.
30TH NOVEMBER AND 10TH DECEMBER, 1996
S.C.Z. JUDGMENT NO. 25 OF 1995
S.C.Z. APPEAL NO. 95 OF 1995

Flynote

Constitutional law - Provisions of Public Order Act Cap. 104, section 5(4) - Permit -
Exemption - Discrimination.

Headnote

The appellant challenged the constitutionality of certain provisions of the Public Order
Act Cap 104, especially section 5(4). The H challenge followed on the fundamental
freedoms and rights guaranteed by arts 20 and 21 of the Constitution. A subsidiary
challenge related to the exemption of certain office-holders from the need to obtain a
permit.

Held: Held (by a majority, CHAILA, J.S., dissenting):

(i) Section 5(4) of the Public Order Act Cap 104 contravenes arts 20 and 21 of the
Constitution and is null and void.

(ii) The exemption granted to certain office-holders does not fall under the
categories listed in the Constitution.

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For the appellant: Mr S S Zulu of Zulu and Company and Professor M.P. Mvunga of
Mvunga Associates
For the respondent: Mr A G Kinariwala, Principal State Advocates
__________________________________________
Judgment

NGULUBE, CJ.: delivered the Judgement of the majority (Ngulube, C.J., Chirwa and
Muzyamba.)

The judgement I am about to read is that of the majority of the court comprising Justices
Chirwa, Muzyamba and myself. Our brother Justice chaila will read his own separate
dissenting decision. The learned Deputy Chief Justice who was the fifth member of the
bench did not indicate his view and has since been injured in a road accident and he is in
hospital. He will be at liberty to place on record - and deliver if required - his own
opinion when he has resumed duties. In the circumstances, there was no need to delay
delivery of judgement since the result of the appeal and the order of the court shall be in
accordance with the judgement of the majority.

The appellants challenged the constitutionality of certain provisions of the Public Order
Act, Cap.104, especially s.5(4) which requires any person to hold a peaceful assembly to
obtain a permit and contravention of which is criminalised by S.7 of the same Act. The
challenge relates both to the requirement of a permit and the prosecution based on the
absence of such permit and it is grounded on the fundamental freedoms and rights
guaranteed by Articles 20 and 21 of the Constitution. A subsidiary challenge relates to
the exemption of certain offices from the need to obtain a permit which is said to be
discriminatory contrary to Article 23 of the Constitution. The issues will best be
understood if we first quote the provisions under discussion. The whole of S.5 of the
Public Order Act reads:

“S.5 (1) The Inspector General of Police may, by Gazette

notice appoint by name or office any police officer of or above the rank of Sub-Inspector
to be the regulating officer for the purposes of this section in respect of such area as the
Inspector General of Police may by the same or any other Gazette notice, define.

(2) In any area in respect of which no police officer has been

appointed to be the regulating officer under the provisions of subsection (1), the District
Secretary of the District in which such area is situated shall be regulating officer for the
purposes of this section:

Provided that in the absence of such District Secretary from

his headquarters the senior Assistant District Secretary present at such headquarters may
exercise the powers conferred upon a regulating officer by subsection (3) and (4).

(3) Any regulating officer may issue directions for the purpose
of:

363
 (a) regulating the extent to which music may be played on
public roads and streets within his area on the occasion of festivities or ceremonies; or

(b) directing the conduct of assemblies and processions in any

public place within his area, and the route by which and the times at which any
procession may pass.

(4) Any person who wishes to convene an assembly, public

meeting or to form a procession in any public place shall first make application in that
behalf to the regulating officer of the area concerned, and, if such officer is satisfied that
such assembly, public meeting or procession is unlikely to cause or lead to a breach of
the peace, he shall issue a permit in writing authorising such assembly, public meeting or
procession and specifying the name of the person to whom it is issued and such
conditions attaching to the holding of such assembly, public meeting or procession as the
regulating officer may deem necessary to impose for the preservation of public peace and
order.

The relevant parts of Article 21 of the Constitution read:

“Article 21 (I) Except with his own consent, no person shall

be hindered in the enjoyment of his freedom of assembly and association, that it to say,
his right to assembly freely and associate with other persons and in particular to form or
belong to any political party, trade union or other association for the protection of his
interests.

(2) Nothing contained in or done under the authority of any

law shall be held to be inconsistent with or in contravention of this Article to the extent
that it i shown that the law in question makes provision

(a) that is reasonably required in the interests of defence,

public safety, public order, public morality or public health;
--------------------------------------------------------------

and except so far as that provision or, the thing done under
the authority thereof as the case may be, is shown not to be reasonably justifiable in a
democratic society.”

We will return to Article 23 regarding the alleged discrimination a little later. The
learned High court Judge who dealt with the constitutional reference from the trial
magistrate held that the impugned provisions were not contrary to the constitution and
were not unjustifiable in a democratic society. He held that to strike down the
requirement for a permit would leave a vacuum in the law and would conduce to chaos
and anarchy. We will deal with the very able submissions and arguments from counsel
on both sides as we proceed but broadly speaking Professor Mvunga and Mr Zulu argued
very forcefully against the impugned provisions while Mr Kinariwala stoutly defended
them, arguing that the requirement of a permit as provided for simply needs amendments

364
in order to offer proper guidance to the regulating officer and to prevent possible abuse
by the officer.

(3) The officer in charge of police or any magistrate may

stop any procession for which no permit has been issued under this section, or which
violates any of the conditions specified in such a permit, and may order such procession
or any assembly which has been convened without a permit issued under this section or
which violates any of the conditions specified in such a permit to disperse.

29. Any person who:

(a) opposes or disobeys any order issued under subsection
(1) of section twenty- eight of this ordinance;
(b) violates any condition of a permit issued under
subsection(2)of section twenty-eight of this Ordinance;
shall be liable on conviction to a fine not exceeding twenty
pounds or to imprisonment for a period not exceeding three months.

30. Any assembly, meeting, or procession--

(a) which takes place without a permit issued under
subsection (2) of section twenty eight of this Ordinance;

(b) in which three or more persons taking part neglect or

refuse to obey any order given under subsections (1) and (3) of section twenty eight of
this Ordinance;

shall be deemed to be an unauthorised assembly, and all persons taking part in such
assembly, meeting or procession for which no permit has been issued, all persons taking
part in convening, collecting, or directing such assembly, meeting, or procession, shall on
conviction be liable to a fine not exceeding fifty pounds or to imprisonment for a period
not exceeding six months or to both such fine and imprisonment

It is obvious that in 1993, the authorities did not have in mind anything like the
fundamental freedoms and rights of assembly and speech. The effect of the provisions in
the 1953 ordinance was discussed by the Federal Supreme Court in Attorney-General For
Rhodesia v Hagamata (1959)1 R & N 226 where the High Court of Northern Rhodesia
had acquitted the accused of unlawful assembly in Chief Chongo’s Village allegedly
because it was not a designated area. In the course of reversing the High Court Judge, the
Federal Supreme Court observed, at pages 230 to 231:

“The offence of unlawful assembly is created by Section 30.

Section 28 simply provides for the permits by which the offence is avoided.
Section 30 is in very wide terms and makes every assembly, meeting or procession in
Northern Rhodesia unlawful, unless it is held under permit. It is therefore to be expected
that provision should be made for a permit system covering the whole Territory and not
only areas designated by the Commissioner of Police. Unless 28(2) was intended to deal
with residual areas covering all undesignated parts of the country, lawful assembly would

365
be impossible in extensive areas. Indeed, if the Commissioner of Police designated no
areas, no lawful assembly could be held in the Territory.”

By the Public order (Amendment) Ordinance No. 10 of 1959 of the legislature of

Northern Rhodesia, the provisions for permits were deleted from the Northern Rhodesia
Police Ordinance and relocated into the Public Order Ordinance. They have survived in
substance and form to this day under the public Order Act. The effect of the provisions
under this Act is still that, unless exempted or under permit, no lawful assembly can be
held in Zambia, every public assembly, meeting or procession in Zambia is unlawful
unless it is held under a permit. This question arises whether these elderly provisions
born in 1953 which still have the effect observed by the Federal Supreme Court are
consistent with the freedoms of assembly and speech enshrined in the constitution.

As we hope to make very clear in the course of this judgement, it was common cause
between the parties that there is absolutely nothing wrong with provisions which are
purely regulatory in the interests of public order as envisaged by the constitution itself,
for example, the matters mentioned in S.5 (3) and S.5 (a) (b) (d) and (e). A major
argument against section 5(4) was with regard to its effect upon the enjoyment of the
freedoms of expression and assembly. The argument was that although the freedoms
under the constitution are not absolute, they should only be regulated but not abridged or
denied. It was submitted that the subsection could not reasonably be justifiable in a
democratic society when it reduced the fundamental freedoms to the level of a mere
licence to be granted or denied on the subjective satisfaction of a regulating officer.
Counsel for the same submitted that the law required amendments to offer adequate
guidelines and to prevent abuse. There was much merit in these submissions which are
supported by judicial authority from around the world. The requirement of prior
permission is an obvious hindrance to two very important freedoms under the constitution
since the right to organise and participate in a public gathering is inherent in the freedom
to express and to receive ideas and information without interference and to
communicated ideas and information without interference. The fact or possibility that
permission to assemble and to speak may be refused - so that the constitutional freedoms
are denied altogether - on improper or arbitrary ground or even on unknown grounds,
renders the subsection objectionable for a variety or reason. In the Patriotic Party v The
Inspector -General Of Police (Writ No. 4/93 - unreported - Judgement of the supreme
Court of Ghana) in relation to Ghanaian legislation making it a requirement to obtain a
permit prior to holding an assembly, Hayfron - Benjamin, JSC, opined at P.41 and 42 of
the transcript we have that such legislation:

“............ creates a prior restraint on the freedom of the citizen

to form or hold meeting or procession and in terms of Article 21 (d) also to demonstrate
in a public place. A prior restraint is an injunction prohibiting the freedom of assembly
procession or demonstration, whether such injunction or prohibition is imposed by statute
or by order of court .......... the citizens freedoms may be restricted by law on the grounds
stated in the constitution but they cannot be denied. Any such denial will be
unconstitutional and void.”

366
We respectfully endorse the learned judge’s sentiments. Quite apart from the possibility
of unconstitutionally denying the fundamental rights, the absence of adequate and
objective guidelines in subsection 4 leaves it seriously flawed. In this connection, we
consider that there is persuasive force in Shuttllesworth v Brimingham US 394 (1969)
vol.22 at 166; or 22L Ed. 2d. 162 cited by counsel for the appellants. The relevant parts
of S.1159 of the General Code of Birmingham alleged to have been violated read:

“It shall be unlawful to organise or hold, or to assist in

organising or holding or to take part or participate in any parade or procession or other
public demonstration on the streets or other public ways of the city, unless a permit
therefore has been secured from the Commission.”

“To secure such permit, written application shall be made to

the commission
...................................................................................................
...........................
The Commission shall grant a written permit for such parade,
procession or other public demonstration ...................... unless in its judgement the
public welfare, peace, safety, health, decency, good order, morals or convenience require
that it be refused............................”

The Supreme Court of the USA held, at page 167...............

“There can be no doubt that the Birmingham ordinance, at it

is written, conferred upon the city Commission virtually unbridled and absolute power to
prohibit any “parade”, “procession,” or “demonstration” on the city’s streets or public
ways. For in deciding whether or not to withhold a permit, the members of the
commission were to be guided only by their own ideas of “public welfare, peace, health,
safety, good order, morals or convenience.” This Ordinance as it was written, therefore,
fell squarely within the ambit of the many decisions of this court over the last 30 years,
holding that a law subjecting the exercise of First Amendment freedoms to prior restraint
of a licence, without narrow objective and definite standards to guide the licensing
authority, is unconstitutional.”

In Pumbum and Another v Attorney General and Another (1993) 2 L.R.C. 317, the Court
of Appeal of Tanzania had occasion to consider the principle that any discretion must be
subject to adequate guidelines and effective control. They held, at p. 323, that:....

“...... a law which seeks to limit or derogate from the basic

right of the individual on grounds of public interest will be saved by article 30(2) of the
Constitution only if it satisfies two essential requirements. First, such a law must be
lawful in the sense that it is no arbitrary. It should make adequate safeguards against
arbitrary decisions, and provide effective controls against abuse by those in authority
when using the law. Secondly, the limitation imposed by such law must not be more than
is reasonably necessary to achieve the legitimate object. This is what is also known as

367
the principle of proportionality. The principle requires that such law must not be drafted
too widely so as to net everyone including even the untargeted members of society. If the
law which infringes a basic right does not meet both requirements such law is not saved
by article 30(2) of the constitution, it is null and void. And any law that seeks to limit
fundamental rights of the individual must be construed strictly to make sure that it
conforms with these requirements otherwise the guaranteed rights under the constitution
may easily be rendered meaningless
by the use of the derogative or claw back clauses of that very
same constitution.”

There is no basis for disagreeing with the view expressed by the Tanzanian court on the
need for adequate guidelines so that the exercise of a discretion by the competent
authorities should have the scope indicated and the manner of its exercise set out in the
affected law with sufficient clarity. Our subsection under discussion does not meet the
test described. We are, of course, alive to the fact that the challenge in this case was not
of the act of the regulating officer in refusing or neglecting to process a permit for the
particular gathering for which the appellants were arrested. What is challenged is the
vires of the subsection itself, among others, because the power granted to the regulating
officer is unguided and allows for arbitrary decisions without effective control. There
may be situations of unconstitutionality where it is the official who acts ultra vires the
constitution when the law itself within constitutional limits. In the instant case it is the
pervasive threat inherent in the very existence of the offending subjection which
constitutes the danger to the relevant constitutional freedoms. As can be seen, and as
conceded by Mr Kinariwala, there are no adequate guidelines in subsection 4. All
meetings and processions require prior permits and, as Professor Mvunga observed, this
law is routinely contravened when we have for example funeral processions and other
gatherings. Fortunately, there are no prosecutions for all these infringements. In our
considered view, the frames of the constitution could not have contemplated
criminalisation of gatherings in this wholesale fashion by some surviving colonial statute.
In the second place, the subsection is highly subjective and expressed on negative terms
when it speaks of the regulating officer issuing a permit only if “ satisfied that such
assembly, public meeting or procession is unlikely to cause or lead to a breach of the
peace.”

The implication is that the permit must be refused unless the regulating officer is able to
satisfy himself or herself to the contrary. It is difficult to imagine a clearer recipe for
possible arbitrariness and abuse. The constitutional arrangements for democracy can
hardly survive if the free flow of ideas and information can be torpedoed by a misguided
regulating officer.

The other aspect whether there are any effective controls on the exercise of the power to
grant or refuse a permit under the subsection being discussed. There are infact none so
that the regulating officer is not required to give reasons for refusal and there is no
procedure provided to act as a safeguard for an aggrieved unsuccessful applicant which is
reasonable, fair and just. Fundamental constitutional rights should not be denied to a
citizen by any law which permits arbitrariness and is couched in wide and broad terms.

368
In The State Of Bihar v K.K Misra and others AIR 1971 1667 at 1675, the Supreme
Court of India expressed the view on laws imposing restrictions on fundamental rights
that:.............

“.........in order to be a reasonable restriction, the same must

not be arbitrary or excessive and the procedure and the manner of imposition of the
restriction must also be fair and just. Any restriction which is opposed to the
fundamental principles of liberty and justice cannot be considered reasonable.”

“One of the important tests to find out whether a restriction is

reasonable is to see whether the aggrieved party has a right of representation against the
representation against the restriction imposed or proposed tobe imposed.”

We find the foregoing to be a round exposition of the attitude to be adopted in these

matters. The principles of fairness, let it be said, are principles in their own right and
ought to be allowed to pervade all open and just societies.

The complaint against the provision that leaves an unfettered and uncontrolled subjective
discretion to a regulating officer was well founded.

This brings us to consider if s.5(4) is reasonably justifiable in a democratic society,

especially one that is re-establishing the essential elements of democracy based on plural
politics and the genuine exercise by the people of their free will and choice and their
freedoms. Even in the best of the democratic traditions, some regulation of public
gatherings is required. For example, the Public Order Act 1986 of England which both
sides referred to is instructive. Provision is made for notifications to be given by
organisers of processions or gatherings so that the regulating authorities have the
opportunity to perform the very necessary function of giving directions and imposing
conditions, if any, for the sake of upholding public order and preserving the peace. The
giving of notice to a regulating authority for the latter to give regulatory directions is one
thing; the giving or refusal of permission to meet and to speak is quite another matter.

For an attempt at the definition of what is a “democratic society” reference should be

made to Patel v The Attorey General (1968) ZR99 at pages 128 to 129. We begin from
the premise that there are certain minimum attributes in any democracy, including the
availability of a Government which reflects the will of the majority of the people
expressed at periodic and genuine elections; the power of the state should reside in the
people and where this is exercised on their behalf, the mandatory is accountable. Apart
from the free and informed consent and maximum participation of the governed, it is also
common to expect that the people have and actually enjoy basic rightrs and freedoms
available to the majority as well as to any minority. Although there are many shades of
democracy and an adequate definition elusive -- and certainly not necessary for our
present purposes -- the courts have long recognised the importance of freedom of speech
and assembly in a democratic society. For example, the European Court of Human
Rights has placed high value on the freedom of expression. We read at paragraph 49 of
the judgement of 7th December 1976, Series A No. 24 Handyside v U.K:.......

369
 “The Court’s supervisory functions oblige it to pay the utmost
attention to the principles characterising a “democratic society”. Freedom of expression
constitutes one of the essential foundations of such a society, one of the basic
conditions for its progress and for the development of every man.................. it is
applicable not only to information or ideas that are favourably received or regarded as
inoffensive or as a matter of indifference, but also to those which offend, shock or disturb
the state or any other sector of the population. Such are the demands of pluralism,
tolerance and broadmindedness without which there is no “democratic society.”

In The State v The Ivory Trumpet Publishing Company Ltd and others (1984) 5 N.C.L.R.
736. Araka, C.J., of the High Court, Enugu said at page 747------

“Freedom of speech is, no doubt the very foundation of every

democratic society for without free discussion particularly on political issues, no public
education or enlightenment, so essential for the proper functioning and execution of the
processes of responsible government is possible.”

The learned judge in the Nigerian case quoted with approval, as we now also do, the
words of justice Brandels of the United States Supreme Court in Whitney v California
274 US 357 (71 Lawed) when he said, at page 375:

“Those who won our independence believed that the final end
of the sate was to make men free to develop their faculties; and that it its government the
deliberative forces should prevail over the arbitrary. They valued liberty both as an end
and as a means ........ They believed that freedom to think as you will and to speak as you
think are means indispensable to the discovery and spread of political truth; that without
free speech and assembly discussion would be futile; that with them, discussion affords
ordinarily adequate protection against the dissemination of noxious doctrine; that the
greatest menace to freedom is an inert people; that public discussion is a political duty;
and that this should be a fundamental principle of the American government. They
recognised the risks to which all human institutions are subject. But they knew that
order cannot be secured merely through fear of punishment for its infraction; that it is
hazardous to discourage thought, hope and imagination; that fear breeds repression; that
repression breeds hate; that hate menaces stable government; that the path of safety lies in
the opportunity to discuss freely supposed grievances and proposed remedies; and that
the fitting remedy for evil counsels is good ones. Believing in the power of reason as
applied through public discussion, they eschewed silence coerced by law - the argument
of force in its worst form. Recognising the occasional tyrannies of governing majorities,
they amended the constitution so that free speech and assembly should be guaranteed.”

The requirement of prior permission to gather and to speak, which permission can be
denied sometimes for good and at other times for bad cause not contemplated by the
constitutional derogation, directly affects the guaranteed freedoms of speech and
assembly. It is little wonder that these are freedoms most discussed by the courts
whenever a democratic society is being considered. The weight of judicial authority in

370
Commonwealth countries argues against the constitutionality of a provision like our
subsection 4 of sections 5 of Cap. 104. Thus, in Thappar v State Of Madras S.C.R.
(1950)594 the Supreme Court of India pointed out at page 603:..........

“Where a law purports to authorise the imposition of

restrictions on a fundamental right in a language wide enough to cover restrictions both
within and without the limits of constitutionally permissible legislative action affecting
such a right, it is not possible to uphold it even so far as it may be applied
within the constitutional limits, as it is not severable. So long as the possibility of its
being applied for purposes not sanctioned by the constitution cannot be ruled out, must be
held to be wholly unconstitutional and void.”

The foregoing disposes of the argument on behalf of the state that the subsection can not
be ultra vires because there is a possibility of using it strictly for the authorised purposes.
Unfortunately, experience teaches and it is sadly not hypothetical that in this country, the
requirement for a permit to gather and speak has been used since 1953 to muzzle critics
and opponents as well as alleged troublemakers. It has also been used to deny permission
on grounds that had nothing to do with securing public order and safety. For example,
there was much litigation in our courts during the recent transition to plural politics
engendered by denials of permits on spurious grounds.

The right to assemble and speak is too important to be conditioned upon subsection 4 as
conceived and first drafted in 1953. The right to assemble and express views is so
important to democracy that the Supreme Court of India was constrained to observe,
rather aptly, in Rangrajan v Jagjivan ram and others (1990) L.R.C. (const.)412 at page
424:

“In a democracy it is not necessary that everyone should sing

the same song ........Democracy is a government by the people via open discussion...........
The public discussion with people’s participation is a basic feature............ of
democracy ............. democracy can neither work not prosper unless people go out
to share their views. The truth is that public discussion on issues relating to
administration has positive value.”

Our neighbours in the Supreme Court of Zimbabwe had occasion to deal with a similar
case to this one in RE MUNHUMESO AND OTHERS (1994) 1 L.R.C. 282 when they
considered the constitutionality of section 6 of their Law and Order (Maintenance) Act
under which the applicants were charged with organising and holding a public procession
for which a permit had not been granted. The applicants, who were members of the
Zimbabwe Congress of Trade Unions, had unsuccessfully applied to a regulating officer
for a permit which was denied without explanation. They held their procession and the
six applicants were arrested. Section 6 was deemed to be ultra vires the constitution and
invalid.

They were dealing with legislation and a constitution very similar to ours and that case
was cited to the learned judge below. He declined to follow it because, as he said, he

371
feared to create a vacuum by striking down the only provision whereby the police are
enabled to know about planned public meetings and processions. We doubt whether it
was a legitimate function of the court to construe the constitutionality of the law under
discussion by reference to the possible administrative consequences of pronouncing
against it. The Supreme Court of Zimbabwe commented upon the importance of the
freedom of expression as follows at page 288:.........

“Freedom of expression, one of the most precious of all the

guaranteed freedoms has four broad special purposes to serve: (i) it helps an individual to
obtain self fulfilment; (ii) it assists in the discovery of truth; (iii) it strengthens the
capacity of an individual to participate in decision making; and (iv) it provides a
mechanism by which it would be possible to establish a reasonable balance between
stability and social change.”

Commenting upon their law which required a permit, they found that section 6 was
plainly at variance with the enjoyment of the freedom of expression and assembly
protected under sections 20 and 21 of their constitution and in considering whether such a
law was reasonably justifiable in a democratic society, they said at page 293:

“What is reasonably justifiable in a democratic society is an

illusive concept, one which cannot be precisely defined by the courts. There is no legal
yardstick save that the quality of reasonableness of the provision under challenge it to be
judged according to whether it arbitrarily or excessively invades the enjoyment of a
constitutionally guaranteed right.”

There is much force in the foregoing and we can not see how that case could be
distinguished from the present. It is highly persuasive and we share the views expressed.
They found their section to be unconstitutional because, when certain features were taken
cumulatively, the provision was not reasonably justifiable in a democratic society. The
features were firstly the uncontrolled nature of the discretionary power vested in the
regulating authority; secondly the fact that the regulating authority was not obliged, when
imposing a ban, to take into account whether disorder or breach of the peace could be
averted by attaching conditions upon the conduct of the procession such as a relating to
time, duration and route; thirdly, the fact that although the rights to freedom of expression
and assembly are primary and the limitations thereon secondary, section 6(2) reversed the
order, in effect denying such rights unless the public procession was unlikely to cause or
lead to a breach of the peace or public disorder; and fourthly, the criminalisation of a
procession held without a permit irrespective of the likelihood or occurrence of any threat
to public order. All these features are present in our case also. In truth, there is nothing
to suggest that the legal principles involved here are any different. Of course, we do not
share Mr Kinariwala’s view that the politicians in this country are immature and
irresponsible and that those in Zimbabwe are more responsible and mature. On the
contrary, the people of this country have come a long way and would not like ever again
to be oppressed or caged by any other individual or group of individuals.

372
It is therefore not true that there would be chaos and anarchy if the requirement of
obtaining permission with the chance of being denied such permission is pronounced
against. For one thing, there are other laws such as those under Chapter IX of the Penal
Code. For another, the holding that section 5(4) is unconstitutional will simply mean that
the police and other authorities can no longer deny the citizens of this country their
freedom to assemble and speak. The requirement of a prior permit is a left over from the
days of Her Majesty’s Governors and the British themselves do not require permission to
assemble and speak. Why should we require it?

Although not guided by concern for the administrative consequences, we readily accept
and acknowledge that there are many regulatory features in CAP 104 which are perfectly
constitutional and very necessary for the sake of public peace and order. This was
common cause. For instance, there are subsections authorising the issuing of directions
and conditions for the purpose of regulating the route of a procession; the date, place and
time of an assembly or a procession; their duration and any other matter designed to
preserve public peace order. These regulatory functions of the police can only be in the
highest interest of peace and order. Though therefore the police can no longer deny a
permit because the requirement for one is about to be pronounced against, they will be
entitled-- indeed they are under a duty in terms of the remainder of the Public Order Act
-- to regulate public meetings, assemblies and processions strictly for the purpose of
preserving public peace and order. The police and any other regulating authority can
only perform this other very necessary function of giving directions and imposing
conditions if they are notified, in advance, of any gathering proposed to he held. Such
notification would necessarily differ in form and content from an application for
permission under the subsection challenged in these proceedings. While, therefore, we
would urge that the whole Public Order Act should be reviewed and modernised in its
entirety to enable the police to carry out their duties effectively without contravening any
provision in our constitution we are satisfied that, meanwhile, it would not be unlawful
for the Inspector General of Police, as the appropriate authority under the Act, to devise
some simple and practical method of receiving notifications. Quite clearly, all those
organising meetings and processions have a corresponding obligations to enable the
police to carry out the regulatory function by giving notice. We repeat our conviction
that, contrary to the submission by learned counsel for the state, the people of this
country have long since come of political age and they will not fail to cooperate to make
workable the remainder of the Public Order Act.

We turn to the argument that the exemption granted to certain government officials
(including the Head of State and the Ministries) was discriminatory, contrary to the
constitutional provisions. The learned trial judge was on firm ground when he held that
the provisions did not fall within the categories listed in the constitution. This is self-
evident. In any event, the exemption attached to the offices tabulated and it is unrealistic
for the rest of the citizenry, even if they be opposition politicians, to expect persons
charged with executive and governmental functions and duties not to be accorded
treatment which facilities the performance of their governmental function. Above all, in
view of what we say about subsection 4 of section 5, the arguments are now otiose.

373
In sum and for the reasons which we have given we hold that subsection 4 of section 5
the Public Order Act, CAP 104, contravenes Articles 20 and 21 of the constitution and is
null and void, and therefore invalid for unconstitutionality. It follows also that the
invalidity and the constitutional guarantee of the rights of assembly and expression
preclude the prosecution of persons and the criminalisation of gatherings in contravention
of the subsection pronounced against. Accordingly, a prosecution based on paragraph (a)
of section 7 which depends on subsection 4 of section 5 would itself be inconsistent with
the constitutional guarantees and equally invalid. The appeal is allowed.

Since this was a constitutional reference in a criminal case emanating from the
subordinate court and since the case has without a doubt raised very important public
constitutional issues which are of general benefit, there will be no order as to Costs.

SIPALO CIBOZU AND CHIBOZU v THE PEOPLE (1981) Z.R. 28 (S.C.)

SUPREME COURT
GARDNER, AG. D.C.J., CULLINAN, J.S., AND MUWO, AG. J.S.
(S.C.Z. JUDGMENT NO. 2 OF 1981)

Flynote

Evidence -Statement by accused - Incriminating statement - Duty of court to investigate

and if necessary hear evidence.

p29

Evidence - Statement by accused - Statements made to a person in authority - Need for

"warn and caution" to be administered.
Evidence - Statement by accused - Voluntariness - When challenged - Need for trial
within a trial to be carried out.
Evidence - Medical evidence - Desirability for person who carried out examination and
prepared medical report to give verbal evidence.
Sentence - Assault - Assessment of Sentence - Necessity to obtain medical evidence as to
severity of injuries sustained by victim.

Headnote

The appellants, father and son respectively were convicted of the murder of the deceased,
the first appellant's sister and the second appellant's aunt. The only evidence against
them was that of two incriminating statements made by both appellants to a village
headman. However the statements were extracted from the appellants without any "warn
and caution" having been administered and admitted in evidence without the appellants

374
being asked whether they had any objection to their admission. The second statements,
made to the sole police investigating officer a detective, sergeant, were admitted by the
learned trial judge after a trial within a trial in which the appellants contested the
voluntariness of the statements. A post-mortem report under the hand of a Government
Medical Officer who was not called as a witness, was produced in evidence under the
provisions of s. 191A of the Criminal Procedure Code. On appeal;

Held:

(i) The village headman is in law a person in authority; therefore a "warn and
caution" was supposed to be administered before extracting the statements
from the appellants.

(ii) The appellants were supposed to have been asked whether they had any
objective to their admission, and if so, a trial within trial be instituted to
determine the voluntariness of their admission.
(iii) An inference of the first appellant's guilt cannot safely be drawn simply from
an allegation made in his presence in the absence of material particular.

(iv) The failure by the learned trial judge to observe the inconsistency in the
prosecution evidence constitutes a serious misdirections

(v) The failure by the learned judge to notice or explore the discrepancy in the
second appellant's statement lends force to the appellant's contention that they
were forced to sign already prepared statements.

(vi) Medical reports usually require explanation not only of the terms 40 used but
also of the conclusions to be drawn from the facts and opinions stated in the
report. It is therefore highly desirable for the person who carried out the
examination in question and prepared the report to give verbal evidence.

p30

(vii) Information relating to the severity of injuries sustained by the victim is

essential to a proper consideration of the question of sentence and may in some
cases be essential on the question of verdict.

Legislation referred to:

Criminal Procedure Code, Cap. 160, s. 191 A.

Cases referred to:

(1) Mwanza and Ors v The People (1977) Z.R. 221.
(2) Kasungani v The People (1978) Z.R. 260.

For the appellant: N.L. Patel; Senior Legal Aid Counsel.

For the respondent: R . Balachandran; State Advocate.

375
________________________________________
Judgment

CULLINAN, J.S.: delivered the judgment of the court. The appellants, father and son
respectively, were convicted of the murder of the deceased, the firm appellant's sister and
the second appellant's aunt. On 6th January, 1981, we allowed both appeals, stating that
we would give our reasons for doing so at a later stage. We now give those reasons.

The learned State Advocate Mr Balachandran indicated that the State did not support the
convictions. He very properly pointed to the fact that the only evidence against the two
appellants was that of two incriminating statements, made by both appellants. The first
statements were made to the first prosecution witness, a village headman. Mr
Balachandran submits, and we agree, that the latter was a person in authority and that the
statements were extracted from the appellants without any warn and caution having been
administered. We further observe that the statements were admitted in evidence without
the appellants having been asked whether they had any objection to their admission.

Again, we observe that the learned trial judge placed reliance on the second appellant's
statement as being incriminatory of the first appellant, inasmuch as it was made in the
latter's presence, who, the judge observed, made no attempt to deny it. The learned trial
judge was prepared to draw an inference of guilty from the first appellant's emotion as he
according to the first prosecution witness, offered the latter a head of cattle as an
inducement "to be his witness". It is not clear from the record as to when this alleged
inducement was offered, whether before or after the second appellant's incriminating
statement. More importantly, the record does not reveal as to whether the first
prosecution witness was specifically asked as to what was the reaction of the first
appellant to the second appellant's statement. In the absence of such particulars we do not
see that an inference of the first appellant's guilt can safely be drawn simply from an
allegation made in his presence.

Mr Balachandran submits that in any event the credibility of the first prosecution witness
is suspect, as he testified that the second appellant had run away to hide himself in
banana plantations: the second pro-

p31

secution witness, on the other hand, testified that the other village headman had sent him
and the second appellant to report the matter to the District Governor; in the latter's
absence they both made a report to a local councillor and also the nearby courts and then
returned home. The learned trial judge did not observe this inconsistency in the
prosecution evidence.

The second statements, made to the sole police investigating officer, a detective sergeant,
were admitted by the learned trial judge after a trial within a trial in which the appellants
contested the voluntariness of the statements, maintaining that they had been forced by
the investigating officer to sign the statements, the seventy-four year-old first appellant in

376
particular maintaining that he had been beaten by the latter. Mr Balachandran points to
the fact that the first appellant's statement is recorded as having been taken by the
investigating officer on 7th June, 1979, between 0916 and 1005 hours. The second
appellant's statement however is recorded as having been taken on the same date by the
same officer from 1000 hours onwards. This discrepancy was never noticed or explored
in the court below. It does lend force to the appellant's contention that they were forced to
sign already prepared statements. Suffice it to say that we are not satisfied that had the
learned trial judge directed his mind to this matter he would inevitably have admitted the
statements.

Finally, the cause of death was not in our view satisfactorily established. A post-mortem
report under the hand of a Government medical officer was produced in evidence by the
investigating officer under the provisions of s. 191A of the Criminal Procedure Code.
The medical officer was not called as a witness as he was far removed on duties within
the Province. The post-mortem report indicates that the deceased met her death through
being `'burnt to death" and contains the following:

"The body was lying in the ash of a small burnt house, on the
right body side in contracted position: the body was totally burnt the person could have
been about 80 years of age."

The second and third pages of the report form (Coroner's Form No. 3) bear no entry
whatsoever, indicating that the usual full examination of the body was not carried out,
presumably because of the burnt condition of the body. The report as it stands must
therefore be regarded as inconclusive. Section 119A of the Criminal Procedure Code in
part reads as follows:

"191A (1) The contents of any document purporting to be a

report under the hand of a medical officer employed in any criminal proceedings shall be
admitted in evidence in such proceedings to prove the matters stated therein:

Provided that -
(i) the court in which any such report is adduced in
evidence may, in its discretion, cause the medical officer to be summoned to give oral
evidence in such proceedings or may cause written interrogatories approved by the court
to be submitted to him for reply, and such interrogatories and any reply thereto

p32

purporting to be a reply from such person shall likewise be

admissible in evidence in such proceedings;
(ii) at the request of the accused, made not less than
seven days before the trial, such witness shall be summoned to give oral evidence."

All that the above provisions say is that the report of a medical officer employed in the
public service shall be admitted in evidence "to prove" the contents thereof. The section

377
does not say that the report shall necessarily be admitted as proof conclusive of its
contents. No doubt the legislature has specifically provided for the summoning of the
medical officer, when either party or indeed the court may summon him as a witness in
any event, in the face of an inconclusive as much as an involved or vague report. Usually
indeed the contents of the medical report will in the least require elucidation, a point
which is stressed in the following passage from the judgment of this court per Baron,
D.C.J., in Mwanza and Others v The People (1) at p. 222:

"Neither the trial court nor this court could say from this
statement of facts (containing a paraphrase of a post-mortem report) precisely what was
the nature or the severity of the injuries inflicted on the deceased. We point out to those
responsible for prosecutions that this information is essential to a proper consideration of
the question of sentence, and may in some cases be essential on the question of verdict.
There may be cases in which the medical report will be sufficient to supply this
information without it being necessary to call the doctor, but our experience is that
medical reports usually require explanation not only of the terms used but also of the
conclusions to be drawn from the facts and options stated in the report. It is therefore
highly desirable, save perhaps in the simplest of cases, for the person who carried out the
examination in question and prepared the report to give verbal evidence in court;
certainly the doctor should have been called in the present case."

That passage was repeated in the judgment of this court in Kasungani v The People (2) at
p. 262. In those two cases the court was concerned with the quantum of sentence to be
imposed in respect of a conviction for manslaughter. As the passage frown Mwanza (1)
supra indicates, the observations therein apply a fortiori where the court is concerned
with verdict. It must only be in "the simplest of cases" that a judge in the exercise of his
discretion under s. 191A would decide not to call the medical officer. Quite clearly the
present case cannot be said to fall within that category. In view of the failure to call the
medical officer we do not see that it was proved beyond reasonable doubt that the aged
deceased had not died from natural causes before her house, whether accidentally or
otherwise, took fire.

For the above reasons we consider it was unsafe to allow the convictions to stand and we
allowed both appeals, quashed the conviction and set aside the sentences.

Appeals allowed

378
CUTHBERT KHUMALO v THE PEOPLE (1981) Z.R. 136 (S.C.)

SUPREME COURT
GARDNER, AG. D.C.J., CULLINAN, J.S. AND MUWO, AG. J.S.
11TH AUGUST, 1981
(S.C.Z. JUDGMENT NO. 14 OF 1981)

Flynote

Evidence - Medical report - Statement of accused contained in psychiatrists's report -

whether can be used as evidence against accused .

Headnote

The appellant was convicted on two counts of murder. The prosecution evidence was that
on the evening in question the appellant went to a hut in which the two deceased persons
together with four others were sleeping and fired an automatic gun, killing the two
deceased and wounding four others. The appellant's defence was that he was a freedom
fighter lawfully carrying an automatic weapon.

In considering whether or not it was possible that the appellant's story that the gun
slipped from his shoulder as he entered the low doorway of the hut was true, the learned
trial judge referred to a psychiatrist's report which had been called for at an earlier stage
in the proceedings to ascertain the mental state of the appellant.

Held:

(i) Reference to the appellant's statement in the psychiatrist's report was improper
and was a serious misdirection. A psychiatrist's report in these circumstances,

379
 is relevant only to the mental condition of an accused person. It may not be
used as evidence relating to guilt.

p137

For the appellant: W. Henriques (Miss) Assistant Senior Legal Aid Counsel,
For the respondent: L.S. Mwaba, State Advocate, .
____________________________________
Judgment

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

The appellant was convicted on two counts of murder, the particulars of the charge being
that, on the 8th of November, 1978, at Livingstone, he murdered Mukanjeki Namwala
and Gloria Makwembo.

The prosecution evidence was that on the evening in question the appellant went to a hut
in which the two deceased persons together with four others were sleeping and fired an
automatic gun, killing the two deceased and wounding four others. The appellant's
defence was that he was a freedom fighter lawfully carrying an automatic weapon; that he
had a girl friend (PW.1) in the hut and he was visiting her. In the course of entering the
low door of the hut the gun slipped off his shoulder and, as he tried to catch it, he
accidently touched the trigger, with the result that the whole magazine of thirty rounds
was fired. He maintained that the safety catch of the weapon must have been accidently
knocked into the unsafe position while he was travelling through the bush. There was
expert evidence that this particular type of weapon had three firing positions; one of
which was single shot, another bursts and the third fully automatic. The expert evidence
was that if the gun was set on fully automatic one pull of the trigger would release the
whole magazine. It was in these circumstances that the appellant put forward his defence
of accident.

It was essential for the learned trial judge to consider whether or not there had been an
accident or whether the appellant's action was deliberate. In doing so he meticulously
examined the whole of the evidence including the credibility of the various witnesses
who referred to the appellant's previous knowledge of the girl in the hut whom he said
was his girl friend.

In considering whether or not it was possible that the appellant's story that the gun
slipped from his shoulder as he entered the low doorway of the hut was true, the learned
trial judge referred to a psychiatrist's report which had been called for at an earlier stage
in the proceedings to ascertain the mental state of the appellant.

In the psychiatrist's report the doctor set out the explanation given to him by the appellant
as to how the accident occurred, and the learned trial judge found that this was
contradictory to other statements made by the appellant and to the appellant's own
evidence. He found that, according to the statement referred to in the psychiatrist's report,

380
the gun would have fallen in the opposite direction and the bullets would have gone
behind the appellant outside the hut.

The learned State Advocate, Mr Mwaba, on behalf of the State, has very properly
conceded that the reference to the appellant's statement in the psychiatrist's report was
improper, and was a serious misdirection,

p138

and the State does not support this conviction. A psychiatrist's report, in these
circumstances, is relevant only to the mental condition of an accused person. It may not
be used as evidence relating to guilt.

We agree that the learned trial judge decided that the contradictory psychiatrist's report
was of importance in considering the possible success of the defence of accident, and this
conviction can only stand if we can apply the proviso to section 15 (1) of the Supreme
Court Act. In the whole of the rest of the evidence we are quite unable to say that it is
sufficient to justify our finding that any reasonable court must have convicted despite the
misdirection.

The appeal is allowed, the conviction is quashed, and the sentence is set aside.

Appeal allowed

381
ANDREW TONY MUTALE v CRUSHED STONE SALES LIMITED (1994) S.J. 98
(S.C.)

SUPREME COURT
GARDNER, SAKALA AND CHAILA, JJ.S.
27TH SEPTEMBER, 1994
S.C.Z. JUDGMENT NO. 17 OF 1994
APPEAL NO. 31 OF 1994

Flynote

Assessment of damages - Special damages - When they should be paid - Whether they
should be specifically pleaded in the statement of claim - Requirement for satisfactory
proof of expenses before special damages can be awarded.

Headnote

The appellant was injured in a motor accident and, at a trial by the High Court, the
respondent was found wholly to blame. An order for assessment of damages by the
Deputy Registrar was made and accordingly the Deputy Registrar made such assessment
on the 21st February 1994. Inter alia it was held that the appellant’s medical expenses in
Australia amounting to ten million foru hundred and forty thousand kwacha, and the cost
of his air fare to and from Australia amounting to two million nine hundred and five
thousand kwacha would be disallowed because they had not been pleaded as special
damages in the statement of claim. The appellant appealed.

Held:

382
(i) The defendant was not prejudiced in any way and was fully aware that there
would be a claim for the medical expenses incurred by the plaintiff before the
case went to trial

(ii) There is need for satisfactory proof to be provided before special damages can
be awarded by the court.

p99

Cases referred to:

1. Bank of Zambia v Anderson and Anor 1993 S.C.Z.
Judgement No. 13
2. Harrison v The Attorney General 1993 S.C.Z. Judgement No.
15

For the appellant: A M Bwalya Legal Aid Counsel

For the respondent: I C Ngonga of Ngonga and Co.
______________________________________________
Judgement

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

This is an appeal against an assessment of damages by the Deputy Registrar. There being
no appearance on behalf of the respondent the appeal was heard under the provisions of
rule 71(b) of the Supreme Court rules.

In this case the appellant was injured in a motor accident and, at a trial by the High Court,
the respondent was found wholly to blame. An order for assessment of damages by the
Deputy Registrar was made and accordingly the Deputy Registrar made such assessment
on the 21st February 1994. Inter alia it was held that the appellant’s medical expenses in
Australia amounting to ten million four hundred and forty thousand kwacha, and the cost
of his air fare to and from Australia amounting to two million nine hundred and five
thousand kwacha would be disallowed because they had not been pleaded as special
damages in the statement of claim.

The first medical report indicated that the appellant suffered fifty per cent permanent
disability of his leg and arm and that he had been treated for his injuries at the University
teaching Hospital. There was further evidence that he had further treatment in Australia.
The appellant gave evidence before the Deputy Registrar that he used to be a football
player but now he could not play games and could not walk for along time either. He
was unable to play tennis and badminton, which sports he used to take part in. He said
his right arm was still very stiff and he experienced constant pain which made writing
difficult. He said regarded himself now as cripple because he could not walk very far.
As to his treatment in Australia, he said he was in hospital for one month.

383
In his assessment the learned deputy registrar disallowed the claim for special damages
on the grounds that it was not included in the statement of claim. He awarded nothing for
permanent disability and instead awarded damages for pain and sufering at the rate of
K300 per week for 384 weeks for the period since the issue of the writ, making a total of
K11,300,200. He awarded interest at the rate of 15 per cent for seven years totalling
K120,960.00. The learned Deputy Registrar then went on “in arriving at the figure for
costs I have among other things considered the period the plaintiff spent as an in patient
in University Teaching Hospital. I therefore, make an award of K80,000.00.”

Mr Bwalya, on behalf of the appellant, appealed against the disallowing of special

damages. He conceded that they had not been set out in the statement of claim but he
argued that, prior to the trial, there had been an attempt at settling the damages, and for
that purpose, the full details of the appellant’s expenses had been given to the
respondent’s advocates as set out in document 12 in the record of appeal, which was
included in the bundle of agreed documents at the trial. He said that therefore the
respondent had notice of the claim for special

p100

damages before the hearing of the case and was not taken by surprise. As to the damages
awarded for the injuries, Mr Bwalya argued that these omitted damages for permanent
disability and were so low that this court should interfere and reassess the damages
according to the latest Supreme Court decisions. After questions by the court Mr Bwalya
conceded that the purpose of the appellant’s journey to Australia had been in order to
attend an accountancy training course and he therefore conceded that the claim for the
fare could not be supported; he insisted however, that the medical expenses in Australia
were necessarily incurred as a result of the accident and as a result of the surgeon at the
University Teaching Hospital having reported that, because the wound in the leg was
infected, further treatment to the ankle could not be carried out at the University
Teaching Hospital at that time.

With regard to the failure to include a claim for special damages in the statement of
claim, Order 18 rule 12 (1A) of the White Book provides as follows:

(1A) subject to par. (18) a plaintiff in an action for personal

injuries shall serrve with his statement of claim:
(a) a medical report; and
(b) statement of the special damages claimed.

The rest of the rule then provides that the court may order that such particulars shall be
delivered within a specified time where the documents referred to are not served with the
statement of claim.

The editorial note 18/12/1 of the White Book (1995 edition) sets out the functions of such
particulars, namely, inter alia, to prevent the other side from being taken by surprise at
the trial, and, under (6), to tie the hands of the party so that he cannot without leave go

384
into any matters not included. In this connection there is comment that, if the opponent
omits to ask for particulars, evidence may be given which supports any material
allegations in the pleadings.

There is a further reason why a defendant should be made aware of the total damges to be
claimed, and that is in order to give the defendant an opportunity to make a realistic
payment into court.

In this case the claim in the statement of claim was set out as follows:

“7. As a consequence on the injuries referred to in the

preceeding paragraph the plaintiff has suffered general damages and special damages.

PARTICULARS OF SPECIAL DAMAGES

i. The plaintiff is no longer able to play his favourite sports

namely: football, tennis and badminton
ii. The plaintiff is no longer able to write properly, using his
right hand

AND THE PLAINTIFF CLAIMS

i. damages for negligence

ii. special damages
iii. costs”

in the event therefore, at that stage no figures for medical expenses was drawn to the
attention of the defendant. It might be argued that by referring to special

p101

damages the defendant was put on notice and should have called for particulars of such
damages, but, in the manner in which the statement of claim was drawn, it was apparent
that the advocates for the plaintiff thought that special damages referred to the loss of
amenities as set out in the statement of claim. In view of the fact that at the relevant time
medical treatment was free of charge in Zambia, there was no reason for the defendant’s
advocates to suppose that any special medical expenses were incurred. The fact that the
words “special damages” were used in the statement of claim would not assist the
plaintiff under the editorial note because the type of “special damages” was made clear in
the statment of claim when reference was made to the plaintiff’s loss of amenities. The
fact that loss of amenities is covered by general damages and the wrong reference was
made in the statement of claim does not affect the issue. The attention of the defendant
was not drawn to the fact that medical expenses were incurred, consequently the
statement of claim was defective in this respect.

385
It is therefore necessry to consider the effect of document 12 in the plaintiff’s bundle of
documents. This was a list of expenses incurred by the plaintiff and included the claim
which we have referred to, for medical expenses in Australia. Although this document
was put forward without projudice in the negotiations for a settlement the contents of the
document itself are not without prejudice and there was nothing wrong it its inclusion in
the bundle of documents in the court below. Although the special damages were
belatedly drawn to the defendant’s notice there is no doubt that, at the trial, the defendant
was not taken by surprise nor was any attempt made to make the payment into court
which would have been affected by lack of knowledge of the special damages.

The proper adherence to rules of court has been consistently urged upon parties by the
courts of this country, but a failure, to follow strictly some rules of court should not
necessarily bar a plaintiff from relief. It will be a question of fact in different
circumstances whether such failure has prejudiced defendant, and, if so, whether such
prejudice can be satisfied by the award of costs. In this case the defendant was not
prejudiced in any way and was fully aware that there would be a claim for the medical
expenses incurred in Australia before the case went to trial

In the circumstances therefore, both the learned trial judge and the learned Deputy
Registrar were wrong in refusing to hear evidence of special damages.

We note from documents in the record of appeal, that it is apparent that the plaintiff
was going to rely on the fact that the document to support the medical expenses had been
stolen from him. In a case such as this, where mecial expenses were extremely high, no
court could possibly entertain such a claim without seeing documentary evidence in
support. The fact that the documents were stolen is sufficient ground for the acceptance
of copies as the next best evidence, but is no ground for making an award for such
expenses without adequate proof. Having regard to the order which we propse to make
the plaintiff will have to produce adequate proof (by copies if necessary) before any
award for special damages can be made.

In the past in Zambia it has not been the practice to serve a copy of a medical report with
the statement of claim, but, in view of the provisions of Order 13 rule 12 (1A) this should
be done in future, and, in default, an application can be made for the medical report to be
provided. In this case, as the point was not taken at the trial, the failure to serve a copy of
the medical report will not affect the award.

p102

With regard to the award for general damages, we comment at once that the awarding of
damages for pain and suffering, over a fixed period, when there is continuing disability,
and pain and suffering is not the correct method of dealing with such a case. Generlly
damages for pain and suffering are calculated separately only in cases where there has
been a definite period of pain and suffering which has ceased at some specific time. In
such cases a definite calculation can be made at a rate appropriate to the rate of inflation
at the time of the award. However, in cases such as the present one, where there is

386
continuing pain and suffering and disability, no definite calculation of damages for pain
and suffering can be made ever over any period and such damages are usually taken into
account in a global award which is referred to as general damages. Furthermore, in this
case the learned Deputy Registrar made an inexplicable order by taking into account the
time spent by the plaintiff in the University Teaching Hospital in assessing the figure of
K80,000.00 for costs. In the circumstances the entire approach to the award of general
damages was wrong and the assessment is set aside. This court is now at large in
assessing the appropriate damages.

The last case relating to damages for personal injuries dealt with by this court was Bank
of Zambia v Anderson and Anor (1) 1993 SCZ Judgement No. 13. A reference to the
damages awards in that case will be useful in arriving at an appropriate figure for the
damages to be awarded here.

In the Anderson case we set out the plaintiff’s injuries as follows:

1. Ulcerating of the scalp with no fracture of the skull, resulting

in concussion and retrogr amnesia extending to Christman 1986;l
2, Severe fracture of the right hemi-pelvis with a complete
central dislocation of
3. Damage to right sciatic nerve;
4. A fracture to right sciatic nerve
5. Fractured ribs bilaterally; and
6. Damaged tendon in the right foot causing a permanent
dropped foot.

We also indicated that the evidence showed that the plaintiff had had give operations
including a hip replacement, that it was anticipated that she would require further two hip
replacements and that, as a result of her injuries, the plaintiff could not take part in sports,
she found it very difficult to talk, and, as a result of a permanent disability to the right hip
and leg she had an ugly walk together with disfigurement from scars on her lower and
upper leg together with wasting of the leg.

In the present case the first medical report provided after the accident indicated that the
appellant suffered a compound fructure of the left ankle and a colles fracture of the right
wrist. He was treated by closure of the wound to his leg and had manipulation under
anaesthesia. The report went on “50 permanent disability inrespect of inclusion of left
ankle. Stiffness of right arm and .................. Thirteen months later a further medical
report from Australia read:

There has been:

He had been treated at the University Teaching Hospital February, 1995, after a Road
Traffic accident when he sustained a compound fracture of the left ankle and colles
fracture of the right wrist. His original case notes are missing but it is

387
p103

apparent that there was significant skin loss associated with the ankle injury and when the
bones eventually healed they were in a poor position. He subsequently had an operation
in Australia which partially improved the position. He still gets a lot of paid in the left
ankle, especially when walking. this pain in partly relieved by wearing a specially made
heavy orthopaedic boot.

Regarding the right wrist, he developed information of the tendons which caused
prolonged stiffness and pain after the fracture had healed. To day he still has rotation of
the forearm and pain at the base of the thumb after minor activities. This situation is
unlikely to improve significantly in the future.” The medical reports and other evidence
therefore indicate that damages for pain and suffering and loss of amenities in the present
case should be slightly less than half of those awarded in the Anderson case.

The relevant date of the award in the Anderson case was October,1992 and the High
Court assessment in this case was in February, 1994. In the Anderson case for general
damages at the rate applicable at the date of the award, taking into account pain and
suffering and loss of amenities including the inability to participate sport and family
activities, the possibility that the respondent would suffer because of her loss of earning
capacity, the slight handicap of being unable to carry out house chores, which was
mitigate by the employment of servants but which was still a disability which was not
suffered before the accident , the cosmetic disadvantages caused by the scars including
the pronouncedly ugly lime and the doctriment to her married life, the award was four
million five hundred thousand kwacha. The appropriate award for the appellant’s pain
and suffering and loss of amenities at the same date should, as we have said, be slightly
less than half of that figure. The cases set out in Kemp and Kemp on the Quantum of
Damage vol. 3 between pages 39601 indicate that the appropriate award after allowing
for the difference between pounds and kwacha in respect of the injury to the appellant’s
ankle should, at the date of the Anderson award, have been one million two hundred and
fifty thousand kwacha, and, for the wrist, based on the examples set out between pages
58351 and 58361 of the same volume, the award at that date, should have been seven
hundred and fifty thousand kwacha making a total of two million kwacha. when we
delivered our judgement in the Anderson case we said that we had noted that at the date
of the award in that case the rate of exchange was appropriately K450.00 to the English
pound. We emphasised however, that, while we would take this into account, it would
not form the basis of any exact calculation. In the same way we note that, at the date of
the assessment in this case, the rate of exchange was K1,000.00 to the English pound.
Again we stress that we will not use this for an exact calculation of the amount that
should be awarded to the appellant. As we indicated in the case of Harrison v the
Attorney General (2) 1993 SCZ Judgement No. 16, when considering the change in the
consumer price index between the date of one award and another it would be unrealistic
to multiply later awards by the exact figures shown to be the difference in the price
indices. In this case the figures supplied by the Central Statistics Office indicate that
there was an increase of 27% in the consumer price index between the date of the
Anderson award and the date of the award of this case.

388
p104

Bearing in mind the lowering the value of the kwacha which we have indicated the
amount which should be awarded to the appellant in this case is three million two
hundred and fifty kwacha for general damages.

For the reasons we have given the appeal is allowed; the award of the Deputy Registrar is
set aside, and, in its place, judgement is entered in favour of the appellant for general
damages in the sum of three million two hundred and fifty thousand kwacha.

The assessment of the special damages consisting of the cost of medical treatment in
Australia is sent back to the Deputy Registrar subject to satisfactory proof of special
damages being provided.

Costs to the appellant

Appeal allowed.
HERMAN MVULA v THE PEOPLE (1991) S.J. (S.C.)

SUPREME COURT
SILUNGWE, C.J., SAKALA AND LAWRENCE, JJ.S.
ON 20TH FEBRUARY, 20TH MARCH, 25TH MAY, AND 10TH JULY, 1990 AND
1ST AUGUST,1991
S.C.Z. JUDGMENT NO. 6 OF 1991
S.C.Z. APPEAL NO. 72 OF 1990

Flynote

Murder - Defences - Provocation - Diminished responsibility

Headnote

The appellant was charged with two counts of murder and two counts of attempted rape.
He allegedly shot dead his ex-wife's mother and sister and further attempted to kill his ex-
wife together with a three-year-old toddler. The appellant, a corporal in the army, used an
AK 47 he had stolen from the army barracks to commit the crimes. He appealed against
the lower court's convictions.

Held:

W. Henriques, Senior Legal Aid Counsel

M. Mukelabai, State Advocate
_________________________________________
Judgment

389
SILUNGWE,C.J.: delivered the judgment of the Court.

The appellant was tried in the High Court on an information containing four counts, two
of which related to murder and the other two to attempted murder. It was alleged that on
November 10, 1985 in Lusaka, the appellant murdered Beatrice Sibbuku and Mary
Mukubesa; and that on the same date and at the same place, he attempted to murder
Beauty Sibbuku and Douglas Mukubesa. The appellant was convicted as charged on all
four counts and was sentenced to death on the murder counts. This appeal is against the
said convictions.

The facts of this case are straight-forward. Mary Mukubesa, the deceased, was the
mother of Beauty Sibbuku and of Beauty’s elder sister, Beatrice Sibbuku, also deceased.
It would appear that Mary was also the mother of a three and a quarter year old child
named Douglas Mukubesa. All these four persons as well as Beauty’s young sister named
Bridget Sibbuku, lived together at the material time at a family house, No. 96/4, Garden
Compound, Lusaka.

The appellant, a Corporal in the Zambia Army, is Beauty’s former husband. They got
married in 1981 and had two children. Theirs was an unhappy marriage which was
dissolved by a Local Court sometime during the period June - August, 1985.

On November 10, 1985, at about 08:30 hours, Beauty, together with her elder sister,
Beatrice, and her young sister, Bridget Sibbuku, left the family home to go to church. As
they proceeded to church, they passed by the appellant’s house and Beauty saw her
children outside the house. Beauty then called the elder child so that she could greet both
children but the appellant stopped the children from going to their mother and told her
never to come there. The appellant further said that he was planning to do something
against her family and that she would never forget it. He did not elaborate. Beatrice
asked the appellant why he was threatening them and told him that dissolution of the
marriage did not mean that one spouse should be denied access to children of the
marriage. The appellant alleged that Beauty had infected in him a venereal disease, an
allegation that was denied by Beauty. Beatrice said she was not interested in the
allegation and that they were leaving him with his children. As the voices of the
appellant and Beauty became high-pitched, some neighbours were attracted to the scene.
Beauty’s party then left the scene and went to church. After church service, and as they
walked back home along a main road, they noticed that there was no one at the
appellant’s house.

In the meantime, however, the appellant - though off duty - had decided to report on duty
at the Burma Army Barracks. He went there dressed in combat uniform. On arrival
there, at about 10:00 hours (i.e. on the same date), the appellant’s Guard Commander,
Corporal Simon Mumpalamba (PW 2), told him that he was not on that day’s duty roster.
The appellant responded, falsely, that he had reported on duty because an Administration
Corporal had given him extras, that is, punishment. After the matter had been discussed
between the Guard Commander and Corporal Musonda, a Barracks Officer, it was agreed
to allow the appellant to be on duty.

390
Sometime after lunch time, the Guard Commander saw the appellant come out of a
Sentries’ Office, carrying with him an AK 47 automatic assault rifle. When asked where
he was taking the gun to, he replied that he was going to clean it. The Guard Commander
thought that was a good idea and so allowed the appellant to clean the gun. The appellant
then took the gun into a motor vehicle. Such cleaning entails the dismantling of a gun.
The gun had a magazine but the Guard Commander did not check whether the appellant
had some ammunition.

Sometime later, the appellant disappeared from the Barracks, together with the rifle and
thirty rounds of ammunition. Inquiries in the Barracks as to his whereabouts, or point of
exit, were to no avail.

Later that day, when Beauty went to visit her friend, Agness Chola, she met the appellant.
The appellant spoke first and told her that when they were going to church in the
morning, he was not pleased with what they had said to him and that, in the evening, he
would go to their home so that they could kill him. Beauty went away immediately
leaving the appellant talking to himself.

As about 20:30 hours that day, the appellant visited his mother-in-law’s home and found
Beauty and other members of the family there. Beauty’s mother, Mary Mukubesa, was
having a bath at the time. On arrival, the appellant demanded that he be killed. Beatrice
asked him if he was mad as they had not killed anybody before. The appellant kept
saying “just kill me.” He was, however, ignored and so he went away. A few minutes
later, the appellant returned and, on that occasion, Beauty’s mother had had her bath and
was with her family. The appellant continued to demand that he be killed. This took
place in the verandah of the house. Beauty’s mother pleaded with him to go away. After
a short while, the appellant went away but before he could do so he said that he would
never come back. About five minutes later, however, he reappeared, this time armed
with AK 47 automatic assault rifle. Bridget was some three metres away from him when
he opened fire at the family residence. Bridget ran away and took refuge nearby but was
apparently unnoticed by the appellant. By the time the appellant exhausted all the thirty
rounds of ammunition, Beatrice had been fatally injured and was lying dead; Mary and
Douglas Mukubesa had sustained grave injuries and Beauty herself had been seriously
injured and rendered unconscious. Mary Mukubesa later died at the University Teaching
Hospital about thirty minutes after her admission. Beauty and Douglas were hospitalised
for two weeks and three days before they could be discharged. It was upon her discharge
that Beauty learnt of the tragic demise of her mother, Mary, and of her sister, Beatrice.

About thirty minutes after the shooting incident, the appellant arrived at Emmasdale
Police Station (which was nearby) and there reported the incident and surrendered
himself as well as the AK 47 assault rifle, plus an empty magazine. As he was being
interviewed by Constable Nkhoma, Bridget arrived - in tears - and reported that the
appellant had killed her mother and sister at home. Before he could be taken into
custody, the appellant stated, inter alia, that he had been provoked. His voluntary

391
statement to the Police corroborated the prosecution evidence in virtually all material
respects.

After the first two prosecution witnesses had given evidence, Mr. I. C. Ng’onga, learned
Legal Aid Counsel, applied for the appellant’s medical examination in terms of section
17 of the Criminal Procedure Code Cap. 160, in order to establish his state of mind at the
time that the offences charged were committed. The application was granted and the
appellant later underwent medical examination at Chainama Hills Hospital. Although the
judgment of the trial court showed that a medical report certified that the appellant “was
fit to plead”, no such report appeared on the record of appeal.

When this case first came before us on appeal, Ms Henriques, learned Senior Legal Aid
Counsel, applied for the production of the medical report on the appellant and calling of
Professor Harworth who had examined the appellant so that he could be cross-examined.
The application was granted, pursuant to section 16 (b) of the Supreme Court Act of
Zambia, Cap. 52 of the Laws.

Subsequently, the medical report on the appellant was produced; and Professor Harworth
gave his testimony as to the appellant’s state of mind at the time that the present offences
were committed and during the period that the appellant was medically examined.
Ideally, it is desirable for such testimony to be received by the trial court in terms of
section 16 (d) of the Supreme Court of Zambia Act so that the court can make such
observations or findings thereon as it may deem necessary.

The gist of Professor Harworth’s evidence is that the appellant was under his charge from
June 17, 1986 until May 26, 1987 when he was discharged.

The appellant was fourth-born in a family of seven children. His father (now deceased)
used to suffer from epilepsy and his mother still does so and displays a tendency to
become violent. Further, one of his sisters is mentally sub-normal and epileptic; and his
elder brother reportedly becomes very violent after beer drinking.

Professor Harworth testified that where both parents suffer from epilepsy, there is a
chance that one in four children may also suffer from epilepsy. Epilepsy is, however, not
a disease of the mind, though it may sometimes affect the mind. He further said that
there was history to the effect that the appellant had suffered from fits before the age of
five years; and that he apparently had one fit at the age of twelve years, but no subsequent
fits have since occurred. If a person suffers from epilepsy, there is potential of having fits
throughout his life. According to Professor Harworth, he found no evidence of epilepsy
in this case at the material time and the fact that the appellant remembers clearly what he
did suggests that there is no evidence of epileptic phenomenon. Although Professor
Harworth holds the opinion that the appellant was under intense mental stress at the time
that the offences were committed and wanted to commit suicide during his
hospitalisation, the Professor is equally of the opinion that the appellant knew what he
was doing at the material time. The witness could find no evidence of mental illness in
this case.

392
In here argument, Ms Henriques raised two main grounds of appeal. Firstly, she argued
that there had been provocation in this case; and, secondly, she contended that the new
defence of diminished responsibility - introduced by a recent amendment to the Penal
code - should be available to her client.

With regard to the defence of provocation, Ms Henriques submitted that the learned trial
judge had misdirected himself by holding that the appellant had not been provoked. She
argued that her client had been provoked by his former wife at his residence in the
morning of November 10, 1985; and that he had further been provoked by her and her
relatives at his mother-in law’s house in the evening of that day.

The evidence on record does not support Ms Henriques' submission that Beauty ever
provoked the appellant in the morning. It seems clear that the appellant did not want
Beauty to talk, or have access, to any of the two children of their broken marriage, let
alone to visit his residence. More importantly, it would appear that he was incensed by
the thought that Beauty had allegedly infected him with venereal disease and that his
manhood had thereby been imparied. In any event, even assuming that he had been
provoked in the morning (but we do not so assume), such provocation could not possibly
have amounted to legal provocation later in the evening as the appellant would have had
time to cool down.

The second part of this argument was that, later in the evening, the Appellant was
provoked by Beauty had her relatives at the house of Beauty's mother.

It is not in dispute that when the appellant visited his mother-in-law's house that evening,
he demanded that he be killed. He was, however, ignored. He insisted again on being
killed. He was again ignored. He then went away but he was back within a few minutes.
Once again, the appellant made similar demands. On that occasion, his mother-in-law,
who was then present, pleaded with him to go away. He appeared to heed the pleas and
went away. But, within five minutes he was back, this time armed with the AK 47
automatic assault rifle. He then opened fire at the mother-in-law's house, shooting
indiscriminately until all the 30 rounds of ammunition were exhausted. As a direct result
of the appellant's conduct, two human lives were lost and attempt was made at the other
two.

It is further not in dispute that, as the appellant made demands to be killed, his sister-in-
law, Beatrice, who was shortly afterwards to become one of his victims and to lose her
own life, asked him whether he was mad to make such demands as they had not killed
anyone before. It was the question "are you mad", asked in the preceding context, that
Ms Henriques describes as "a very grave insult" offered to the appellant and that that
constituted provocation.

Ms Henriques submitted that there were two different versions as to whether what was
referred to as "insult" had been offered during the appellant's first or second visit. She
then dre attention to the evidence of Pw3, Beauty, and said that in examination-in-chief,

393
the witness averred that the "insult" had been offered during the appellant's first visit; but
that her cross-examination, at page 26, line 10 of the record of appeal, showed that the
"insult" had been uttered during the appellant's second visit.

Indeed, Beauty's evidence at page 20 of the record clearly reveals that it was during the
appellant's first visit that Beatrice asked him whether he was mad by insisting that he be
killed as they had never killed anyone. However, Beauty's cross-examination at page 26
of the record offers no support for Ms Henriques submission, neither does any such
support exist on record. The upshot of all this is that, during the appellant's first visit,
Beatrice reacted to what appeared to be his unreasonable demands; during his second
visit, he repeated the demands but he was apparently prevailed upon by his mother-in-
law's pleas that he should go away, no one asked him on that occasion whether he was
mad; and during his third visit, he unleashed gun fire at his mother-in-law's house and its
occupants.

It would appear that when PW4, Bridget, testified that no "insult" had been offered, she
did not regard what Beatrice had said to the appellant as amounting to an "insult".

The question must now be asked whether Beatrice's intervention that tragic evening
amounted to provocation? In the circumstances of this case, we think that it did not. Our
considered standpoint is that the whole scenario was in itsef a clear manifestation of
premeditation, that is, malice afforethought, on the part of the appellant. Taking
advantage of the altercation that he and Beauty had in the morning, the appellant
threatened that he was planning to do something against her family and that she would
never forget. Although he was off-duty on that day, he put his army combat uniform and
pretended to report on duty at the Burma Army Barracks do that he could gain access to a
firearm. He then took an AK 47 automatic assault rifle (and concealed a magazine
containing 30 rounds of ammunition) under the pretext that he going to clean the said
rifle. The rifle was dismantled, concealed in a coat and stealthly smuggled out of the
Barracks together with the magazine. The appellant returned to his home (which was
apparently in Garden Compound) where he assembled the rifle. Later in the evening, at
about20.30 hours, he went to his mother-in-law's house where his former wife was
residing and there demanded that he be killed. As his demands were unreasonable,
Beatrice asked him whether he was mad. when he repeated his demands, he was ignored
and so he went away momentarily. He returned and made similar demands. He then
took heed of his mother-in-law's pleas and went away for about five minutes before he
could return to perpertrate despicable violence against his former wife and her family,
resulting in human injury and loss of life. This was truly a fulfillment of his threat earlier
on in the morning tat he could do something against his former wife's family that she
would not forget. Indeed, Beauty would never forget the sad events of that night. As can
be seen, the appellant must have hidden the rifle nearby before he visited his mother-in-
law's house on the first occassion. He had carried it for the purpose of teaching his
former wife and her family a lesson which she would never forget. He had gone there to
look for provocation so that he could use it as an excuse to fulfill his dastardly scheme
but he did not get it.

394
In any event, even if Beatrice's reaction were to be translated into provocation, which we
are unable to do, such provocation cannot amount to a legal defence as her reaction took
place on the first visit; and the second visit ended with pleas for the appellant to go away,
which he heeded. It was on the third visit that he resorted to gun-fire. He had brought
the gun with him and hid it nearby, not for the purpose of using it to commit suicide, but
in order to use it against his former wife and her family. We have no hesitation in
holding that the appellant's violent conduct was premeditated. It seems to us that his
main grievance was the thought that his former wife had brought venereal disease to him
and thereby impaired his manhood.

Having said all this, we are satisfied that the learned trial judge did not misdirect himself
on the defence provocation. The appeal based on this ground cannot, therefore, succeed.

As a subsidiary ground, Ms Henriques submitted that the evidence given by Beauty and
Bridget should have been treated with caution as they were not particularly fond of the
appellant and that their evidence was probably coloured by their dislike of him.

In our judgment, where the evidence of a witness is virtually common ground, or not
seriously controverted, as is the evidence of Beauty and Bridget, then no issue of the kind
here canvassed arises. Moreover, although Beauty and Bridget must have disapproved
of the appellant's deplorable conduct on that tragic night, there was no evidence to show
that either Beauty or Bridget disliked the appellant. We consider that the submission
under consideration is non sequitur.

Finally, it was submitted that the appellant's behaviour by going to his mother-in-law's
house and there demanding that he be killed was abnormal, as a normal person would not
do such a thing. Furthermore, it was submitted that as the appellant had been under
intense mental stress at the time that the offences were committed and that he even spoke
of wishing to commit suicide during his admission at the Chainama Hills Hospital, the
defence of diminished responsibility recently introduced by section 12A of the Penal
Code, Act No. 3 of 1990, should be available to the appellant and thereby make him
liable to be convicted of maslaughter.

The new law which came into force on May 11, 1990, is couched in these terms:

12A. (1) Where a person kills or is a party to the killing of another, he shall not be
convicted of murder if he was suffering from such abnormality of mind (whether arising
from a condition of arrested or retarded development of mind or any inherent causes or is
induced by disease or injury) which has substantially impaired his mental responsibility
for his acts or omissions in doing or being party to the killing.

(2) The provisions of subsection (2) of section thirteen shall apply with necessary
modifications to the defence of diminished responsibility under this section:

Provided that the transient effect of intoxication as described in that subsection shall be
deemed not to amount to disease or injury for purposes of this section.

395
(3) On a charge of murder it shall be for the defence to prove the defence of diminished
responsibility and the burden of proof shall be on a balance of probabilities.

(4) Where the defence of diminished responsibility is proved in accordance with this
section, a person charged with murder shall be liable to be convicted of manslaughter or
any other offence which is less than murder."

For the defence of diminished responsibility to succeed, the defence must prove, on a
balance of probabilities, that the accused's mental responbility for his acts or omissions in
doing, or being a party to, the killing of another was substantially impaired.

In this case, the appellant elected to remain silent and to call no witnesses, as he was
entitled to do. This means that, apart from the cross-examination of prosecution
witnesses, his only evidence was the confession statement made to the Police. We are,
however, unable to glean, either from the appellant's confession statement or the
prosecution evidence, that his mental responsibility for his part in the killing of two of his
victims was "substantially impaired." Professor Harworth's testimony was that although
the appellant was under severe mental stress at the time that he committed the homicides,
he was not suffering from any abnormality and that he knew what he was doing. It
follows that he cannot avail himself of the defence of diminished responsibility.

In any case, we are satisfied in our minds that section 12A has no retrospective
application to this or any other case of a similar nature. This is in confirmity with section
15 (3) of the Interpretation and General Provisions Act, Cap. 2 of the Laws of Zambia,
the relevant paragraphs of which read as follows:

"15(3) Where a written law repeals in whole or in part only any

other written law, the repeal shall not-

(a) revive anything not in force or existing at the time at which the repeal takes
effect: or

(b) affect the previous operation of any written law so repealed or anything duly
done or suffered under any written law so repealed."

It follows, therefore, that the relevant law applicable here is one that was in force at the
time when the killings already referred to were perpetrated.

It is obviously clear from the totality of what we have said above that the findings of the
learned trial judge cannot be disturbed. Accordingly, the appeal against convictions on
the murder and attempted murder counts is dismissed.

It now remains for us to consider what kind of sentence is appropriate in this case. Prior
to the enactment of Act No. 3 of 1990, aprt of which has already been referred to in
another context, ther was one sentence only for murder, namely, death; this sentence was

396
mandatory, notwithstanding the existence of extenauting circumstances. However, the
severity of the death penalty under section 201 of the Penal Code has been mitigated by
Act No. 3 which makes provision for the imposition of a lesser sentence where
extenuating circumstances are present. Section 201, as amended, now provides that-

"201 (1) Any person convicted of murder shall be sentenced-

(a) to death; or

(b) where there are extenuating circumstances, to any sentence other than death:
Provided that paragraph (b) of this subsection shall not apply to murder committed in the
course of aggravated robbery with a firearm under section two hundred and ninety-four.

(2) For the purpose of this section-

(a) an extenuating circumstance is any fact associated with the offence which diminish
morally the degree of the convicted person's guilty;

(b) in deciding whether or not there are extenuating circumstances, the court shall
consider the standard of behaviour of an ordinary person of class of the community to
which the convicted person belongs.

Having considered the standard of behaviour of an ordinary person of a class of the

community to which the appellant belongs, in light of his violent conduct in executing the
carefully planned homicides, we are satisfied that there are no extenuating circumstances
present in this case. This means that the only sentence available here is death.

Appeal is dismissed.

397
ASKAN DAS BATRA v THE ATTORNEY-GENERAL (1993 - 1994) Z.R. 41 (S.C.)

SUPREME COURT
GARDNER, CHIRWA AND MUSUMALI, JJ.S.
5TH AND 31ST AUGUST, 1993.
(S.C.Z. JUDGMENT NO. 12 OF 1993)

Flynote

Unauthorised - Employment contract - Medical treatment - Whether reimbursable as a

condition of free medical treatment under general order 179.

Headnote

The appellant was employed by the Zambian Government as an accountant with the
Ministry of Legal Affairs. Upon a recommendation for further evaluation of his medical
condition he travelled to the UK where he underwent elective heart surgery. Upon his
return, he claimed reimbursement of his medical costs from the Zambian Government.
The High Court dismissed his claim. He appealed to the Supreme Court.

Held:

General order 179 is a term of the contract between the appellant and the Government,
but it does not create a legal entitlement to treatment abroad. It does not bind the
Government to authorise and pay for overseas medical treatment it merely provides for
ex gratia facilities in some cases at the discretion of the Government. Where it was
intended that there should be entitlement to free medical services it is stated quite
clearly, as in general

398
p42

order 166 of the Conditions of Service for Zambian Civil Servants which reads as
follows:

''Officers and their dependants are entitled to free medical

and dental attention from non fee paying wings and Government health institutions.''

For the appellant: F. M .Chomba SC., Mutinondo Chamber.

For the respondent: S. R. De Silva, Senior State Advocate.

10

15

20

25

______________________________________________
Judgment

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

This is an appeal from a judgment of a High Court dismissing the appellant's claim for a
refund for medical expenses.

The facts of the case are that the appellant was employed by the Zambian Government as
an accountant with the Ministry of Legal Affairs. In June, 1991, he consulted Dr W. M.
Mwansa at the University Teaching Hospital and was diagnosed as suffering from heart

399
disease which he had for a few years. The doctor gave the appellant a letter addressed to
whom it may concern in the following terms:

''University Teaching Hospital

P O Box 50001,
LUSAKA.

5th June, 1991.

TO WHOM IT MAY CONCERN
RE: MR A. D. BATRA 67 YEARS
This gentleman suffers from ischaemic heart disease.
Few years ago he underwent coronary angiography in United
Kingdom which then showed partially blocked vessels. Recently he has again been
experiencing pain especially of exertion. His latest echo showed some heart involvement
and with it he has been dipping into heart failure. Mr Batra requires further evaluation in
United Kingdom again since facilities are not available locally.
Your help will be greatly appreciated.

Dr .W. M. Mwansa, MD
CONSULTANT PHYSICIAN - MEDICINE.''

The appellant, who was suffering some pain, applied to his ministry for leave to enable
him to go to the United Kingdom, where his brother was practising as a doctor, in order
to have the evaluation referred to by Dr Mwansa. He was granted 30 days' leave, which
was referred to as medical leave, and he proceeded to the United Kingdom. His air fare
was paid for by the Zambian Government and in his evidence the appellant said that it
had cost over two hundred thousand kwacha for him and his wife to fly to London and
back.

Counsel for the State indicated to us that the air fares were provided to the appellant as
being due to him at the end of his contract, while reference was made by counsel in the
Court below to the cost of the air fares having been advanced to the appellant. In London
the appellant had the necessary medical evaluation of his condition and received a
medical report dated 10th July, 1991, which read as follows:

''Dr Peter Mills FRCP

18 Upper Wimpole Street
London WIM 7TB

p43

10th July, 1991,

PM/JB
MEDICAL REPORT
Re: MR A. BATRA

400
 I reviewed this patient at the London Independent Hospital on
6/7/91. His angiogram shows a severe and somewhat complex lesion in the right coronary
artery and in addition he has appreciable aortic regurgitation. Whilst the aortic
regurgitation is not currently causing any adverse effect on left ventricular function it
looks as if this would be likely to occur in the foreseeable future.

The patient will be returning to live in Africa and then in

India and would prefer to have any cardiac surgery that might be required carried out
electively at the present time. In the light of this I think that surgery rather than
angioplasty would be preferable to the right coronary artery lesion since he also has an
occluded left anterior descending vessel and I have asked Mr Lewis to carry this out on
8th July, 1991.
Peter Mills FRCP.''

As a result of the advice he received, the appellant elected to have an operation in

London and the operation was successfully carried out. On his return to Zambia the
appellant requested the Ministry of Health to reimburse to him the medical expenses
which he had incurred together with his travelling expense. The request was refused on
the grounds that the appellant had no prior permission of the Permanent Secretary of the
Ministry of Health before he went for treatment. The appellant then issued a writ
claiming the reimbursement.

At the trial the appellant gave evidence setting out his claim. Dr Mwansa gave evidence
that he had advised the appellant to South Africa, and had told him that, since he was 67
years of age, the committee which recommended treatment abroad would not support his
claim for medical expenses. This evidence was contrary to the evidence of the appellant
who said that he gained the impression that by his letter of recommendation Dr Mwansa
was indicating that his treatment abroad would be paid for by the Government. Dr
Mwansa also said that the appellant's condition did not require emergency treatment.

Dr Chirwa, Acting Deputy Director of Medical Services at the Ministry of Health, gave
evidence that there was an Ad Hoc committee which reviewed all cases requiring
treatment abroad. He said that the committee made recommendations for treatment
abroad where such treatment could not be carried out in Zambia and, where it was
considered that a patient had no funds, the committee could recommend payment of
funds by the ministry. He said that where patients had their own funds they assisted in
obtaining foreign exchange to enable them to pay for their own treatment abroad, but he
knew of one case where patients who had paid for their own treatment abroad had
received reimbursement from the ministry. Dr Chirwa gave evidence that there were
insufficient funds to send all deserving patients abroad and that there was such a long
waiting list of such patients that some died before they could be sent abroad.

At the trial, counsel for the appellant argued that the appellant was entitled to payment of
his medical expenses under the provisions of general order No. 179 of the conditions of
service of Zambia civil servants. Although the appellant had given evidence that he was
entitled to

401
p44

free medical in Zambia or abroad no contract was put forward on his behalf to support
any special conditions of service.

The learned trial judge found that no special conditions of service had been put forward
on behalf of the appellant and held that, as he had not applied for permission from the Ad
Hoc committee for treatment abroad, he was not entitled to claim any reimbursement.

Before this Court, Mr Chomba on behalf of the appellant has maintained that the
appellant is entitled to costs of his medical treatment abroad in accordance with the
provisions of general order No. 179 which reads as follows:

''The Permanent Secretary, Ministry of Health, in exceptional

circumstances, may authorise that an officer or a dependant of an officer be sent for
specialist medical or dental treatment outside Zambia, provided he is satisfied that such
treatment cannot be obtained in Zambia and is necessary for the officer's or the
dependant's recovery. In such cases, the Permanent Secretary, Ministry of Health, will
direct the country and medical or dental institution to which the officer shall be sent and
the Government will bear all the treatment, medical or dental and subsistence costs
involved. The Government will similarly bear the transport and subsistence costs for the
wife, husband and parent or other close relative of the patient if the Permanent Secretary,
Ministry of Health, is satisfied that it is essential for the patient to be accompanied by a
member of his or her immediate family.''

In particular Mr Chomba argued that the appellant came within the terms of that order
because the essential factors entitling an officer to medical treatment abroad were
present, namely that:

(a) the case was exceptional;

(b) the appellant could not be treated in Zambia;
(c) the treatment abroad was necessary for his recovery and he
required treatment.

He maintained that the appellant's conduct in having the operation abroad when he was
there was reasonable having regard to the advice he received. Mr Chomba argued that
having satisfied the conditions of general order 179 the appellant was entitled to receive
the costs of treatment abroad. It was further argued that because the learned trial judge
had found in favour of the appellant in respect of all the conditions referred to in general
order 179 the appellant was entitled as of right to payment for his treatment abroad, and
his right should not be defeated merely because he failed to follow the correct procedure
in applying to the Ad Hoc committee before he left. In his written submissions, Mr
Chomba drew our attention to the appellant's evidence as follows:

402
 ''Under my contract I was entitled to free medical treatment.
My entitlement is four hundred thousand kwacha to this day for the whole contract.''

It was argued that, despite the absence of any document setting out the appellant's terms
and conditions of service, the Court should have accepted the appellant's uncontroverted
evidence.

Finally, Mr Chomba argued that the Court should have found that Dr Mwansa's letter was
authority for the obtaining of treatment abroad at Government expense.

p45

In reply Mr De Silva argued that general order 179 did not entitle the appellant to
payment for treatment unless he was authorised by the Ad Hoc committee; without such
authorisation none of the other arguments could support the appellant's claim.

We will deal first with the argument that the appellant's own evidence was that he was
entitled to free medical treatment and, that, as there was no evidence to contradict this, he
should be regarded as having a contract to that effect. Despite the appellant's evidence
the whole of the respondent's case was that the appellant was not entitled to free medical
treatment abroad under the provisions of general orders 173 and 174, which provide that
where an officer is travelling on duty outside Zambia and requires medical attention, he
must meet the cost of treatment himself and then apply for a refund to his ministry. The
reference to four hundred thousand kwacha entitlement is not clear but in itself could not
possibly support the appellant's claim. It was for the Court to decide whether the
appellant was entitled to free medical treatment abroad, and the appellant's statement with
regard to this was evidence upon which the case could be decided. Without more specific
evidence it was no more than a statement of the appellant's claim and, presumably, what
he thought was his entitlement. In the absence of specific conditions of service other than
those contained in the general orders no other conditions could be considered either in
this Court or in the Court below. This ground of appeal must fail.

Counsel relied on general order 179 as entitling the appellant to succeed in his claim. Mr
Chomba argued that, even though the wording of the order is the Permanent Secretary
''may'' authorise overseas treatment, the appellant came within the provisions of the order
and therefore it was mandatory for him to be sent overseas for treatment at Government
expense.

The general order is a term of the contract between the appellant and the Government and
it is our duty to construe the order so that it gives effect to the intentions of the parties.
We will deal first with the meaning of ''exceptional circumstances''. The later proviso that
the Permanent Secretary must be satisfied that the treatment cannot be obtained in
Zambia and is necessary for the officer's recovery is a sine qua non in every case of
consideration, and the fact that an applicant comes within that proviso does not in any
way make him an exceptional case. We construe the reference to exceptional
circumstances as an indication that there is no general rule by which the Permanent

403
Secretary is bound. The use of the word ''may'' is also an indication that the order did not
intend to bind the Permanent Secretary or the Government. There is nothing to suggest an
intent that the word should have a mandatory effect. The result of this construction is that
we find that it was not the intention of the parties to find the Government to authorise and
pay for overseas medical treatment. The wording of the order makes it quite clear that the
intention was to provide ex gratia facilities in some cases at the discretion of the
Government through the Permanent Secretary. The existence of an Ad Hoc committee,
which could make recommendations, was an internal arrangement in order to enable the
Permanent Secretary to make the difficult decisions as to which parties should benefit. It
was quite clear from the evidence of Dr Chirwa that not all deserving cases could be

p46

catered for under the ex gratia scheme and for this reason there was no intention to make
it a contractual liability for the Government to provide funds for overseas treatment.
Where it was intended that there should be entitlement to free medical services this was
made quite clear, as in general order 166 which reads as follows:

''Officers and their dependants are entitled to free medical and

dental attention from non fee paying wings and Government health institutions''.

There the word ''entitled'' has been specifically used.

As we see it, the appellant seems to have misunderstood the situation as being that,
although he would in the ordinary way be entitled to Government funds for overseas
treatment, he lost that entitlement by having failed to go through the correct channels of
applying to the ad hoc committee before he left the country. If this had been the case it
would have been completely wrong to deprive the appellant of a right to which he was
entitled for a pettifogging bureaucratic reason. However, that was not the case. There
never was an entitlement in the first place and the evidence of Dr Mwansa indicated that
because of his age the appellant could not in any event have been considered for an ex
gratia grant. Whether this provision was unfair or not does not concern us. We are only
concerned with the consideration of whether or not there was entitlement.

So far as Dr Mwansa's letter is concerned, Mr Chomba argued that this was clearly taken
as an undertaking by Dr Mwansa that the Government would pay for the overseas
treatment. Although Dr Mwansa was a member of the ad hoc committee dealing with
recommendations for overseas treatment he was not held out as having authority to
commit the Government financial liability and, in any event, the wording of the letter
asking for ''to whom it may concern' to help the appellant could not possibly be
considered as an undertaking or authorisation for payment for the overseas treatment. Mr
Chomba has most persuasively argued that the appellant's is a deserving case and we
agree with him that the appellant did act reasonably by choosing to have an operation in
London whilst he was there.

404
However, the appellant has failed to establish that he had any legal entitlement in this
case and the appeal is dismissed.

The learned trial judge in the Court below saw fit to make no order as to the costs, and we
agree that, as this issues has not been decided before in this Court and it is one of general
interest to all Government employees, there should be no order for costs of this appeal.

Appeal dismissed.

OLIVER JOHN IRWIN v THE PEOPLE (1993 - 1994) Z.R. 7 (S.C.)

SUPREME COURT
GARDNER, SAKALA AND CHAILA., JJ.S.
2ND FEBRUARY AND 17TH MARCH,1993.
(S.C.Z. JUDGMENT NO.4 OF 1993)

Flynote

Criminal law and procedure - Bail - Whether available on a murder charge.

Criminal Law of Procedure - Inquest - Whether pre-empted by committal proceedings.

Headnote

The appellant, who was charged with murder, was denied bail and committed to trial in
the High Court before an inquest was held. The High Court's ruling arose from a referral
by the Magistrates' Court in response to the appellant's application for bail, for an order
that a preliminary inquiry be held, and for an order that an inquest be held under the
provisions of s.7 of the Inquest Act while the ongoing proceedings were discontinued.
The appeal raised some preliminary procedural issues as whether the matter was properly
before the Supreme Court. Having so ruled, the Court considered the substantive
questions and held as follows.

Held:

(i) The High Court has power to admit to bail in all cases including those relating
to persons accused of murder and treason, subject to the rule that such persons

405
 are rarely admitted to bail. Such application must be made to the High Court.
The subordinate court has no power to grant bail in a murder case, and the
Supreme Court enjoys only appellate jurisdiction.

(ii) An inquest is subject to the mandatory provisions of s.6 of the Inquest Act that
cannot be commenced and would have to be adjourned until the conclusion of
criminal proceedings.

Cases referred to:

(1) Kaunda v The People (1990-92) Z.R. 215.
(2) Kaindu v The People (Application No. 6 of 1991).
(3) Mumbuna v The People (1984) Z.R. 66.
(4) Kaunda v The People (1990-92) Z.R. 91.
(5) Sikatana v The People (1982) Z.R. 109.
(6) Warner v Metropolitan Police Commissioner [1968] 2 All
E.R. 356.
(7) Beswick v Beswick [1967] 2 All E.R.1197.

Legislation referred to:

1. Inquest Act, Cap. 216, ss.6, 7.
2. Criminal Procedure Code, Cap.160, s. 123(1), (3).

For the appellant: E. J. Shamwana, with him G. Chilupe and J. Naik.

For the respondent: C. Godwin, Senior State Advocate .
____________________________________
Judgment

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

This is an appeal from a ruling by the High Court on a case stated that there should be no
inquest but that the appellant should be committed to the High Court for trial and that bail
could not be granted because the appellant was charged with murder.

The appellant was charged with murder, the particulars of the charge

p8

being that he, on 27th May, 1987, murdered one Maria Somers Vine. When he appeared
before the principal resident magistrate, Lusaka, counsel on his behalf made three
applications:

(1) for bail;

(2) for an order that a preliminary inquiry be held; and
(3) for an order that an inquest be held under the provisions of s.7
of the Inquest Act and that the original proceedings be discontinued.

406
The learned magistrate ruled that s.123 of the Criminal Procedure Code debarred her
from granting bail in murder cases and that, as the order for exhumation of the body of
the deceased was for the purpose of holding an inquest, the charging of this appellant for
the offence of murder was illegal and an inquest should have been held in accordance
with the earlier order of the coroner.

The learned magistrate was of the opinion that the criminal proceedings were illegal ab
initio and that the Court should discharge the appellant and order an inquest. However,
she was of the view that she had no jurisdiction to make such orders and referred the
issue to the High Court by way of case stated.

The learned trial judge found that s.6(1) of the Inquest Act was mandatory in its provision
that when a person is brought before a magistrate on a charge of (inter alia) murder an
inquest shall not be commenced, or, if commenced, shall not be continued until after the
conclusion of the proceedings. He also found that none of the facts put forward on behalf
of the appellant as reasons to the contrary had been proved, and that the powers of the
Director of Public Prosecutions enabled him to choose whether to commit for summary
trial or to prefer an inquest before the coroner.

As to bail, the learned judge found that he was bound by the cases of Kaunda v The
People [1] and Kaindu v The People [2] in which the Supreme Court ruled that no
application for bail lies in any court in cases of murder or treason. However the learned
trial judge indicated that the Supreme Court's judgments may have been best delivered
per incuriam in that art.94 of the Constitution, which gives the High Court unlimited
jurisdiction, had not been considered by this Court.

In any event the learned judge found that no application for bail accompanied by
necessary documents was properly before him and he consequently made the orders
referred to against which the appellant now appeals.

Mr Godwin, on behalf of the State, raised a number of preliminary objections against our
hearing the appeal. First he argued that, as a certificate for summary trial under s.254 of
the Criminal Procedure Code had been issued by the Director of Public Prosecutions on
11th December, 1992, and produced to the subordinate court on a date thereafter which
he could not particularise, the question of holding an inquest or a preliminary inquiry no
longer arose because, under art. 5, 6(6), the exercise of the powers of the Director of
Public Prosecutions could not be questioned or subjected to control.

In reply Mr Shamwana, on behalf of the appellant pointed out that whether or not an
inquest should have been held was one of the issues

p9

to be decided on the appeal and was not a matter for preliminary objection.

407
We are of the view that although the Director of Public Prosecutions has power to initiate
criminal proceedings when he deems fit, such power is always subject to any laws which
determine whether such proceedings may be commended at all. If there is an argument
that the provisions of the Inquest Act prevent the commencement of criminal proceedings
until after an inquest, we must hear that argument. This preliminary objection must fail.
We will deal with the next two preliminary points together because they both relate to the
question of the correct procedure which should have been adopted in the circumstances
of this case.

Mr Godwin drew our attention to the case of Mumbuna v The People [3] in which this
Court held that no case would be stated by a subordinate court for consideration by the
High Court until a full hearing before a subordinate court had been determined. He
argued that as there could be no case stated there could be no appeal.

We agree with Mr Godwin that a case stated did not lie in this case; but, as we indicated
in the Mumbuna case, there is provision in art.28(2) of the Constitution for reference by a
subordinate courts to the High Court of any question as to the contravention of arts.11 to
26, and thereafter for appeal to the Supreme Court. The learned judge dealt with the first
application before him as being by way of case stated. He criticised the form in which it
was presented to him by the learned magistrate as not being in accordance with s.350 of
the Criminal Procedure Code relating to cases stated, and sent it back to the learned trial
judge in his ruling, but, in view of the fact that the learned judge proceeded to hear
argument and to deliver a ruling, we presume that he decided to deal with the matter as
reference under the provisions of art.28(2) as this Court did in the Mumbuna case where
proceedings had been started by similar irregular procedure.

In the event we are satisfied that, although the appropriate procedure was not followed in
this case, the questions referred under the improper case stated were questions which
could properly have been referred under art.28(2) and an appeal consequently lies to this
Court. Mr Godwin's argument as to the proper form of reference to the High Court
therefore falls away.

As we have decided to treat this matter as having started with a reference under art.28(2)
we now have to consider it in the light Mr Godwin's fourth preliminary objection namely
that no interlocutory appears into the Supreme Court during the course of a criminal trial.
In support of this argument Mr Godwin referred us to the case of Kaunda v The People
[4] in which this Court held that no interlocutory appeal could be entertained by the
Supreme Court during the course of a High Court criminal trial which is still in progress.
In that case we specifically pointed out that s.20 of the Supreme Court Act, which would
enable this Court to hear references from the High Court would enable this Court to make
such a reference. We referred in that case to the case of Sikatana v The People [5] in
which we indicated that there was clear statutory provision for reference by a subordinate
court to the High Court under art.29(3) (now article 20(2) of the Constitution).

That is the situation in this case,

408
p10

and, because the reference was from a subordinate court to the High Court under art.28(2)
(a), the Supreme Court has jurisdiction to entertain an appeal therefrom under art.28(2)
(b). We agree with Mr Godwin that a case stated did not lie in this case; but as we
indicated in Mumbuna case, there is provision in art.28(2) of the Constitution for
reference by a subordinate court to the High Court of any question as to the contravention
of arts.11 to 26, and thereafter for appeal to the Supreme Court. The learned judge dealt
with the first application before him as being by way of case stated. He criticised the
form in which it was presented to him by the learned magistrate as not being in
accordance with s.350 of the Criminal Procedure Code relating to cases stated, and sent it
back to the learned magistrate to be re-stated. At the second hearing Mr Godwin drew the
learned trial judge's attention to the Mumbuna case and argued that no case could be
stated. This argument was not dealt with by the learned trial judge in his ruling, but in
view of the fact that the learned judge proceeded to hear argument and to deliver a ruling,
we presume that he decided to deal with the matter as a reference under the provisions of
art.28(2) as this Court did in the Mumbuna case where proceedings had been started by
similar irregular procedure.

In the event we are satisfied that, although the appropriate procedure was not followed in
this case, the questions referred under the improper case stated were questions which
could properly have been referred under art.28(2) and an appeal consequently lies to this
Court. Mr Godwin's argument as to the proper form of reference to the High Court
therefore falls away.

As we have decided to treat this matter as having started with a reference under art.28(2)
we now have to consider in that light Mr Godwin's fourth preliminary objection, namely
that no interlocutory appeals lie to the Supreme Court during the course of a criminal
trial. In support of this argument Mr Godwin referred us to the case of Kaunda v The
People [4] in which this Court held that no interlocutory appeal could be entertained by
the Supreme Court during the course of a High Court criminal trial which is still in
progress. In that case we specifically pointed out that s.20 of the Supreme Court Act,
which would enable this Court to hear references against any person in the High Court to
make such a reference. We referred in that case to the case of Sikatana v The People [5]
in which we indicated that there was clear statutory provision for reference by a
subordinate court to the High Court under art.29(3) (now art.28(2)(e)). The Supreme
Court has jurisdiction to entertain an appeal therefrom under art 28(2)(b). Had a similar
statutory provision existed to make s.20 of the Supreme Court Act effective, the appellant
in the Kaunda case would have had, as we indicated in this case, a right of reference to
the Supreme Court. We are satisfied that by treating this matter as having originated as
reference by a subordinate court to the High Court this appeal is properly before us. The
final preliminary objection taken by Mr Godwin was that there was in fact no application
for bail before the High Court. Although this was disputed by Mr Chilupe for the
appellant, there is no need for us to consider whether or not there was such an application
because we are quite satisfied that there was an application for bail before the learned
magistrate and a ruling thereon by

409
p11

the learned judge. The question of the availability of bail in this case is therefore properly
before us on appeal. During the course of the hearing we indicated that none of the
preliminary objections was successful and we proceeded to hear arguments on the merits
of the appeal.

Mr Shamwana, on behalf of the appellant, argued that the State, by charging the appellant
with the offence of murder, before an inquest has been held as ordered, acted illegally
and rashly so that the appellant suffered injustice.

In support of his argument Mr Shamwana referred to ss.6 and 7 of the Inquest Act
cap.216 which read as follows:

''(1) Whenever the coroner is informed that some person has been or is about to be
brought before a magistrate on a charge of murder, manslaughter or infanticide of the
deceased or of a motor vehicle or complicity in the death of deceased under s.8 of the
Suicide Act, in the absence of reason to the contrary the inquest shall not be commenced
or if commenced shall not be continued or resumed until after the conclusion of the
proceedings.
(2) After the conclusion of the criminal proceedings the coroner,
may, subject as hereinafter provided, hold an inquest or resume the adjourned inquest. . . .
(7) Notwithstanding any law or custody to the contrary enacted
or obtaining, whenever it shall appear to any coroner that the body of any person who has
died in circumstances requiring the holding of an inquest having been held or where such
inquest, although held, has been quashed or reopened it shall be lawful for such coroner
by his warrant in form 1 in the schedule to order the examination of such body; and he
should, after such examination, proceed to hold an inquest on such body and thereupon
direct the reinterment thereof. . .''

Mr Shamwana stressed the words in s.6 ''in the absence of reason to the contrary'' and
argued that where there were reasons to the contrary it was mandatory that an inquest be
held. He argued that it was illegal to take any proceedings against the appellant without
holding an inquest first. He did not cite any authority in support of his contention but
maintained that it would be illegal and unjust to treat the appellant in any other way. In
support of the argument that in this case there were reasons to the contrary Mr Shamwana
pointed out that the matter arose out of a death which occurred in 1987, that the appellant
had been charged within one month of the exhumation of the body, that the facts pointed
to the suggestion that the prosecution had intended to charge the appellant even before
the exhumation, that the prosecution had disregarded the rules relating to the holding of
inquests and that the circumstances suggested mala fides on the part of the prosecution.
In the Court below it was pointed out that the coroner's order had named a Dr Patel as the
pathologist to examine the body after exhumation, that Dr Patel had previously been
deported from Zambia and was out of the jurisdiction when he was named by the coroner,
that the exhumation, and that s.7 of the Inquest Act specifically provided that after an

410
exhumation the coroner should proceed to hold an inquest. It was argued by Mr
Shamwana that the language of s.7 was mandatory and did not allow for the stay or
adjournment of the inquest pending criminal proceedings.

In the Court below the learned judge found that none of the facts relied

p12

on as ''reasons to the contrary'' had been proved, but that, in any event, the Director of
Public Prosecutions had jurisdiction to prefer a prosecution to an inquest.

As to bail, Mr Chilupe on behalf of the appellant argued that the High Court had
unlimited jurisdiction to admit to bail in any case. He referred to s.123(1) and (3) of the
Criminal Procedure Code which read as follows:

''123(1) When any person, other than a person accused of

murder or treason, is arrested or detained without warrant by an officer-in-charge of a
police station or appears before or is brought before a court, he may at any time, while he
is in the custody of such officer, or at any stage of the proceedings before such court, be
admitted to bail upon providing a surety or sureties, sufficient in the opinion of such
officer or court, to secure his appearance, or released upon his own recognisance.

(3) The High Court may, at any time, on the application of an

accused person, order him, whether or not he has been committed for trial, to be admitted
to bail or released on his own recognisance, and the bail bond in any such case may, if the
order so directs, be executed before any magistrate.''

He argued that ss.(1) which excludes persons accused of murder or treason applies only
to persons detained by a police officer or who appears before a subordinate court, and
that ss.(3) applies to persons who make applications for bail to the High Court, which has
unlimited jurisdiction to grant bail in all cases including those involving persons charged
with murder or treason.

Mr Chilupe also adopted the comments of the learned trial judge to the effect that as the
Constitution gave the High Court unlimited jurisdiction such jurisdiction included the
power to grant bail in all cases. Mr Chilupe also argued that the words of limitation
relating to persons accused of murder or treason appear only in ss.(1) and are omitted
from ss.(3). The reason for this, argued Mr Chilupe, must be that the High Court has
different powers.

Referring to the learned trial judge's finding that there had been no formal application for
bail with appropriate documents made to him in the High Court, Mr Chilupe maintained
that such affidavits in support, when making verbal applications for bail.

Finally Mr Chilupe drew attention to art.13(3) of the Constitution which provides that
any person who is arrested or detained and who is not tried within a reasonable time shall

411
be released either unconditionally or on reasonable conditions to ensure that he appears
for trial. It was pointed out that in such a case there are no exceptions for persons charged
with murder or treason and it was argued that this indicated an intention in the
Constitution that bail could be granted without limitation of the types of offence with
which a person was charged.

In reply Mr Godwin argued that the question whether or not there should be a prosecution
was in the hands of the Director of Public Prosecutions whose decision could not, in
terms of art.66(6), be questioned. He argued that, although s.7 of the Inquest Act
provided that here should be an inquest after an exhumation, s.6 expressly prevented such
an inquest's being held until after criminal proceedings had been concluded.

With regard to bail Mr Godwin maintained that the exclusion of

p13

persons charged with murder or treason in s.123(1) applied throughout the section and
prevented such excluded persons being granted bail by any court.

He relied on the settled law, as indicated in the Kaunda and the Kaindu cases, that
s.123(1) prevents the granting of bail by any court to a person accused of murder.

In reply Mr Shamwana maintained that the power of the Director of Public Prosecution
was not in question but he questioned the exercise of those powers in this case when the
time that had passed since the death of the deceased was five years and the conduct of the
prosecution suggested mala fides. He maintained that the proviso in s.6 of the Inquest
Act, that if there were reasons to the contrary the inquest should not be stayed, was
mandatory. He argued, on the question of bail, the ss.(3) of s.123 of the Criminal
Procedure Code should be constructed separately from ss.(1), so that the High Court had
power to grant bail in all cases except those specifically excluded by ss.(4), which relates
to persons charged under the State Security Act.

In considering whether in any circumstances there could be reasons for not staying an
inquest which could render the charging of a person with a criminal offence illegal, we
have considered the purpose of s.6 of the Inquest Act.

In the United Kingdom, rule 22(1) of the Coroners Rules 1953 provides for the
adjournment of an inquest at the request of the police when criminal proceedings are
contemplated but no charge has yet been preferred. Although no such rules have been
promulgated in Zambia they give an indication of the reason for s.20(1) of the English
Coroners (Amendment) Act, 1926, which provides that, when a coroner is informed
before the jury have given their verdict that some person has been charged with (inter
alia) murder, he shall, in the absence of reason to the contrary, adjourn the inquest until
after the conclusion of the criminal proceedings. Jervis on Coroners (9th ed.) at page 157
points out that the reason for the provision for adjournment is that the holding of an
inquest might be prejudicial to the investigations of the police. It will be seen that the

412
wording of the English section is similar, especially as regards the words ''in the absence
of reason to the contrary'', to the Zambian section. It is clear that in both countries the
intention of the Legislature is to make the time of the holding of an inquest subordinate to
any criminal proceedings. We are unable to accept Mr Shamwana's argument that a
reason contrary to the desirability or necessity of a stay of an inquest could ever make the
preferring of a criminal charge illegal. If there were reasons of such importance that they
made it absolutely essential for an inquest to be held, and we are not saying that such
reasons exist here, the most that could be done would be for an application to be made for
an order of mandamus to compel the coroner to hold an inquest.

As to the effect of s.7 which Mr Shamwana argued made it mandatory for the coroner to
proceed to hold an inquest after an exhumation, we are of the view that any inquest so
held would be subject to the mandatory provisions of s.6, and could not be commenced or
would have to be adjourned until the conclusion of the criminal proceedings. Counsel for
the appellant and the learned magistrate seem to be under the impression

p14

that s.7 must be construed as if it meant that after an exhumation an inquest must be held
immediately. No such immediacy can be construed from the wording of the section and
the resulting inquest is subject to the mandatory provision for stay contained in s.6, which
applies to all inquests. This ground of appeal cannot succeed.

As to bail, this question has already been decided by this Court in the Kaunda case and
the principle of stare decisive applies. However, Mr Chilupe and the learned judge have
suggested that the decision in the Kaunda case was made per incuriam.

The learned magistrate and counsel for the appellant argued that, because capital
punishment did not now apply in all murder cases, bail should now be available in such
cases. As we pointed out in the Kaunda case the appellant was charged with murder,
rightly or wrongly, and remains so charged. In this case as in all cases where persons are
charged with murder the question of sentence, as the learned judge indicated, does not
arise until conviction. In any event, in all such cases there is a possibility of an acquittal
or a conviction for manslaughter but this does not affect the construction of s.123(1)
which specifically states that persons accused of murder or treason are excluded from the
provisions as to bail. The section does not refer to the exclusion of persons who on
conviction will be subject to capital punishment but specifically refers to persons charged
with the offences of murder and treason, not to the possible punishment therefor.

Before the learned judge and this Court counsel for the appellant argued that ss.(3) of
s.123 should be constructed separately from ss.(1) and that it gives the High Court
unlimited power to grant bail in all cases without any exceptions.

Again in connection with his argument we have considered the intention of the
Legislature. Counsel for the appellant have asked us to assume that the Legislature
intended to limit the powers of subordinate courts but to give the High Court unlimited

413
powers because of the higher stature of judges. In pursuance of this argument we are
asked to construe ss.(1) as applying to subordinate courts only. We are asked to construe
the words ''when any person appears before or is brought before a court'' as referring to a
person's appearing before a subordinate court only. The result of this construction would
be that after a refusal of bail by a subordinate court a person accused of murder could
apply to the High Court, which he is quite entitled to do under ss.(3), and the High Court
would have power to grant bail when a subordinate court had no such power.

There is nothing to prevent this situation obtain. Prior to 1957, s.116 of the Criminal
Procedure Code, which related to bail, read as follows:

''116(1) When any person, other than a person accused of

murder or treason, is arrested or detained without warrant by an officer in charge of a
police station, or appears or is brought before a court, and is prepared, at any time while
in the custody of such officer, or at any stage of the proceedings before such court, to
give bail, such person may be admitted to bail.''

This had the same effect as the present s.23(1) and excluded persons accused of murder
and treason from the provisions as to bail. Subsection (3) read as follows

p15

''(3) Notwithstanding anything contained in ss.(1) of this

section, the High Court may, in any cases, direct that any person be admitted to bail or
that the bail required by a subordinate court or police officer be reduced.''

This quite clearly gave the High Court power to grant bail in all cases without the
exclusion of persons accused of murder or treason.

By ordinance No.50 of 1957, s.116 was repealed and replaced by a section identical to
the present s.123. We must consider whether the repeal and replacement was intended to
alter the powers of the High Court to admit to bail in all cases. The words
''notwithstanding anything contained in ss.(1)'' are now omitted. It might be argued that
the omission of such words meant that any restrictions contained in ss.(1) should now
apply to the powers of the High Court; equally it could be argued that the intention of the
Legislature to give the High Court unlimited powers is so clear that the words
''notwithstanding'' etcetera were considered by the draftsman to be superfluous and were
for that reason omitted from the new section.

We are of the view that the latter construction is the correct one. There is nothing to
indicate that the Legislature intended to deprive the High Court of its unlimited powers as
to bail in all cases without exception merely by omitting the words to which we have
referred.

In the Criminal Procedure Code, if sections are to be subject to the limitations or

exceptions of other sections, they are expressly stated to be so subject. In s.123, itself, ss.

414
(2) is made subject to s.126 which creates an exception to its provisions. In the same way
in s. 221(9), para. (a) is made subject to para.(b) which creates an exception to its
provisions. The ss.123(3) which we are construing stands alone and is not stated to be
subject to any other section or subsection. In other Commonwealth countries we find that
the United Kingdom has a provision empowering the High Court to grant bail to persons
accused of treason (the only offence there for which there is capital punishment) and
denying such power to lower courts. The same rule in cases of treason and murder
applies, so far as we are able to ascertain, in the other Commonwealth countries of
Africa. There is no reason for Zambia to be an exception.

We are aware of the strictures against resorting to Hansard for the purpose of ascertaining
the intention of the Legislature when the construction of statutes is considered by the
Courts. However, in the case of Warner v Metropolitan Police Commissioner [6] Lord
Raid said:

'' The rule is firmly established that we may not look at

Hansard, and in general I agree with that view for reasons which I gave last year in
Beswick v Beswick [7]. This is not a suitable case in which to reopen the matter, but I am
bound to say that this case seems to show that there is room for an exception where
examining the proceedings in Parliament would not certainly settle the matter
immediately one way or the other.''

We do not propose to suggest in this judgment that the previous practice should not be
followed, but for the purpose of confirming that our construction of s.123 of the Criminal
Procedure Code is correct we have referred to Hansard. The relevant report of the
proceedings in Parliament on 8th November, 1957, when the Attorney-General, B.A.
Doyle (as he then was) introduced the Bill to amend the Criminal Procedure Code,
indicates

p16
at page 253 that he said (inter alia):

''Clauses 4 to 9 deal with matters of bail and indeed they are

mere clarification from a draftsman's point of view except in respect of one matter. The
only alteration to bail now is that the Courts have been given specific powers to impose
conditions on bail . . .''

This supports the view we now take of the proper construction of s.123(3) which is
contrary to the view we took in our judgment in the Kaunda case of 1992. As suggested
by Mr Chilupe, our earlier judgment was made per incuriam. The question of construing
ss.(3) separately from ss.(1) was not argued before the Court and not taken into
consideration. We are not satisfied that the High Court has power to admit to bail in all
cases including those relating to persons accused of murder and treason. We confirm,
however, that the subordinate court is restricted and may not admit to bail persons
accused of murder or treason.

415
The question of the jurisdiction of the High Court is of course irrelevant. Although art.94
of the Constitution gives the High Court unlimited jurisdiction that court is bound by all
the laws which govern the exercise of such jurisdiction. If, contrary to our finding,
s.123(1) did in fact limit the powers of the High Court, it would be bound by such
limitation.

In view of our findings the appeal succeeds on the question of bail and the appellant has a
right to apply for bail to a judge of the High Court. Such court will of course be bound by
the general rule that persons accused of murder are very rarely admitted to bail.

This Court has no power to admit to bail where there is no appeal from a conviction in
the High Court. As the learned judge in the Court below did not consider that a proper
application for bail had been made of the High Court, despite the argument to the
contrary by counsel for the appellant, we order that if bail is required a fresh application
must be made to the High Court.

Appeal allowed in part.

PATSON SIMBAIULA v THE PEOPLE (1991 - 1992) Z.R. 136 (S.C.)

SUPREME COURT
NGULUBE D.C.J., GARDNER AND SAKALA, JJ.S.
11TH AUGUST, 1987 AND 20TH FEBRUARY, 1991
(S.C.Z. JUDGMENT NO. 1 OF 1991)

Flynote

Criminal law - Murder - Death not resulting directly from injury sustained - When
affecting liability.

Headnote

Where a person inflicts an injury and the injured person later dies of a cause not directly
created by the original injury, but caused by it, the requirement of causation is satisfied.
Where the cause of death can be traced back in a clear chain to the actions of the person
causing the injury, it is not always necessary for direct evidence to be lead that the
injured person received proper medical treatment.

p137

Cases referred to:

(1) Raymond Mweetwa Banda v The People S.C.Z. Judgment
No. 17 of 1984.
(2) R v Jordan [1956] 40 Cr. App. Rep. 152.
(3) R v Smith [1959] 2 All E.R. 193.

416
(4) R v Blaue [1975] 3 All E.R. 446.

For the appellant: Mrs E.N. Muyovwe, Legal Aid Counsel.

For the respondent K.C. Chanda, Senior State Advocate.

Judgment

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

Delay in delivering this judgment is very much regretted but resulted from the fact that
the draft of the judgment prepared earlier has gone missing, together with the copy of the
record on which it was being circulated for approval of their lordship. Despite every
effort, that draft has not been found and it became necessary to write this replacement.
The appellant was sentenced to death for the murder of his estranged wife. The
particulars were that on 2nd December, 1985, at Kalomo, he murdered Lonica Milondo
Siamuchangwa.

Although the deceased died on 2nd December, 1985, the events giving rise to such death
occurred on the night of 8th August, 1985, at the deceased's village. The prosecution
evidence was to the effect that on the night in question PWs 1 and 2 were attracted by
shouts for help. When they got out of their own house in the village, each claimed that
the deceased's grass thatched house was in flames and the appellant was seen thereat
armed with an axe with which he struck the deceased as she attempted to come out. The
deceased had with her in the house two young children and the evidence of PW2 was that
the appellant kept shoving the deceased back into the flames when she tried to escape.
There was evidence that when PW1's 12 year old son approached the scene the appellant
struck him with an axe, causing injuries and for which offence he was subsequently jailed
after pleading guilty. PW2 also stated that as he was approaching the scene the appellant
threw a sand-filled bottle at him before making good his own escape. The deceased and
her children suffered burns. In addition, the deceased suffered injuries with the axe. She
was hospitalised in a local rural health centre and then at a mission hospital before finally
being transferred to Livingstone Hospital where she remained for about three months
before expiring. She suffered burns over 40% of her person and the pathologist gave the
cause of death as circulatory failure due to toxaemia due to extensive burns.

One ground of appeal criticised the allegedly uncritical reliance placed by the learned
trial Commissioner on the evidence of PWs 1 and 2 since the deceased was their sister.
The short answer is that this ground cannot avail because, in view of the appellant's own
confession statement which was admitted in evidence without any objection, there could
not have been any dispute about the basic facts which were that the appellant set the
deceased's house on fire and then attacked her by the door as she attempted to escape.
The appellant's testimony on oath in which he admitted only to assaulting the deceased
and PW1's son with an axe handle, allegedly in self-defence, but not to setting fire to the
house, was, in the circumstances, properly discounted.

p138

417
The major ground of appeal was to the effect that it was wrong to find that the appellant
had caused the deceased's death, having regard to the fact that she died three months later
and she had undergone medical treatment the details of which were not led in evidence.
The argument was that the learned trial commissioner should not have merely accepted
the pathologist's report in which he proposed that a detailed autopsy was not required
since the cause of death was so obvious to him, namely, circulatory failure due to
toxaemia due to extensive burns. Mrs Muyowe's submission was that, according to
Black's Medical Dictionary, toxaemia was a form of blood-poisoning and this indicated
that it resulted from infection due to failure to clean the wounds. She submitted that, in
the absence of viva voce medical evidence, it could not be assumed that every person
who has 40% burns could have toxaemia and it was, therefore, impossible to say that the
deceased's treatment had been proper. The authority relied upon for all these submissions,
both here and the trial, was our decision in Raymond Mweetwa Banda v The People [1]
in which the prosecution failed to prove a causal connection between the brain abscess
which caused death and the felonious injury by axing which occurred six months earlier,
followed by medical treatment, details of which were not placed before the Court. We
said there that the prosecution had, by their failure to adduce evidence of the treatment,
failed to establish the connection, as a matter of causation, between the injury and the
immediate cause of death. We had, in that case, accepted an argument based on R v
Jordan [2] in which the injured person died, not from the injuries which were then healing
satisfactorily but directly as a result of wrong medication re-introduced by a doctor who
was not aware that his colleagues had discontinued it because of the injured persons
intolerance to it.

The learned senior State advocate asked us to uphold the learned trial commissioner and
to hold that the case of Banda did not suggest that the absence of evidence of treatment
must always be fatal even in a case such as this where there was no suggestion of
negligence on the part of the doctors.

We have carefully considered the submissions and the arguments based on the Banda
case. That case was an instance of the application of s. 207(a) of the Penal Code which
reads:

''207. A person is deemed to have caused the death of another

person although his act is not the immediate or sole cause of death in any of the following
cases:

(a) If he inflicts bodily injury on another person in

consequence of which that other person undergoes surgical or medical treatment which
cause death. In this case it is immaterial whether the treatment was proper or mistaken, if
it was employed in good faith and with common knowledge and skill; but the person
inflicting the injury is not deemed to have caused the death if treatment which was its
immediate cause was not employed in good faith or was so employed without common
knowledge or skill.''

418
It is clear from the section that the person inflicting the felonious injury will not be held
to have caused the death if the immediate cause is the improper medical treatment itself.
In the instant case, the pathologist had no difficulty in finding that the death could be
traced back in a clear caused chain to the burns suffered as a result of what the appellant
feloniously did. Mrs Muyowe's submission, in effect, sought to assert that

p139

Banda was authority for a proposition that evidence must always be adduced in a case
such as this. Banda introduced no such general requirement and it was simply an instance
of the application of the provision in the section which we have quoted. Since that case
was based on R v Jordan, it is necessary to stress that these two case were decided on
their own facts where the improper treatment, and not the original injury, caused death.
Those cases were not intended to establish any departure from the basic common-law
requirements of causation as they have always existed. In dealing with a somewhat
similar submission, the Courts-Martial Appeal Court in R v Smith [3] found that R v
Jordan was a very particular case depending on its exact facts. At page 198, they dealt
with counsel's submissions in the following terms:

''In these circumstances counsel for the appellant urges that,

not only was a careful summing-up required, but a correct direction to the Court would
have been that they must be satisfied that the death of Private Creed was a natural
consequence and the sole consequence of the wound sustained by him and flowed
directly from it. If there was, says counsel for the appellant, any other cause whether
resulting from negligence or not, if, as he contends here, something happened here which
impeded the chance of the deceased recovering, then the death did not result from the
wound. The court is quite unable to accept that contention. It seems to the Court that, if at
the time of death the original wound is still an operating cause and a substantial cause,
then the death can properly be said to be the result of the wound, albeit that some other
cause of death is also operating. Only if it can be said that the original wounding is
merely the setting in which another cause operates can it be said that the death does not
result from the wound. Putting it in another way, only if the second cause is so
overwhelming as to make the original wound merely part of the history can it be said that
the death does not flow from the wound.''

In upholding the common-law approach to causation the Court of Appeal in England

commented upon R v Smith in R v Blaue [4] in the following terms, at page 449:

''There have been two cases in recent years which have some
bearing on this topic: R v Jordan and R v Smith. In R v Jordan the Court of Criminal
Appeal, after conviction, admitted some medical evidence which went to prove that the
cause of death was not the blow relied on by the prosecution but abnormal medical
treatment after admission to hospital. This case has been criticised but it was probably
rightly decided on its facts. Before the abnormal treatment started the injury had almost
healed. We share lord Parker, C.J.'s opinion that R v Jordan should be regarded as a case

419
decided on its own special facts and not as an authority relaxing the common-law
approach to causation.''

In the case now before us, the post-mortem left no room for doubt on the question of
causation. Mrs Muyowe's submission rested on an assumption that the medical
authorities may have neglected to clean the injuries, thereby allowing toxaemia to set in.
In describing the symptoms and the healing process in a patient who has suffered serious
burns, the authors of the same Black's Medical Dictionary, which Mrs Muyowe relied
upon, point out, at page 154 of the 29th edition:

''All through this stage there is, in extensive burns, a liability

to death from ulceration of the bowels or from general blood-poisoning.''

p140

There is no basis for the assumption suggested and the chain of causation was clearly not
broken in this case where, on the facts accepted, the appellant evidenced a determined
intention to cause death or at least very serious injury by setting fire to the deceased's
house and then attacking with an axe and trying to prevent the escape of the deceased and
her children from the burning inferno. As the cases of Banda and R v Jordan are
distinguishable, the ground of appeal in this behalf cannot be accepted since, clearly, the
death resulted from a chain of causation traceable right back to the fire.

For the foregoing reasons, this appeal is dismissed.

Appeal dismissed

420
HEUFF v MBEWE (1965) Z.R. 111 (S.C.)

SUBORDINATE COURT
EVANS, S.R.M.:
17TH AUGUST, 1965

Flynote and Headnote

[1] Civil procedure - Privilege - State privilege for official documents sought by one
party: See [7].

[2] Criminal procedure - Privile ge - State privilege for official documents sought by
one party: See [7].

[3] Evidence - Privilege - State privilege for official documents in case in which
private party is suing the State:

In a case in which a private party is suing the State a stronger showing of injury to the
public interest is necessary to uphold the privilege than in a case in which the State is
not a party.

[4] Evidence - Privilege - State privilege for official documents in case in which State
has no direct interest - burden of proof:

If the judge is in doubt as to whether a State interest justifies the withholding of

documents, he must uphold the State's objection.

[5] Evidence - Privilege - State privilege for official documents in case in which
State has no direct interest - in general:

421
A document need not be produced by the State, either on discovery or at trial, if the
head of a Government department personally examines the documents and certifies in
good faith and on reasonable grounds (which he must state) that disclosure of the
document is contrary to public policy.

[6] Evidence - Privilege - State privilege for official documents - limited publication
does not destroy privilege:

A limited publication of a document (i.e., not to the public at large but rather to a few
people concerned with the public issue at stake) does not destroy the State's claim of
privilege.

[7] Evidence - Privilege - State privilege - procedure for determining whether

privilege applies:

If State privilege is claimed for documents sought to be produced, the court can call for
the documents and inspect them itself in order to verify the State's reasons for wishing
them to be withheld.

[8] Evidence - Privilege - State privilege - 'public interest' defined:

The State's need for complete and candid information in order to prevent or settle
trade disputes is the type of 'public interest' that can support State privilege for
documents.

[9] Evidence - Privilege - State privilege for official documents - secondary evidence
inadmissible if privilege upheld:

If a claim of State privilege is upheld, no secondary evidence as to the contents of

documents is admissible.

p112

Cases cited:
(1) Robinson v State of South Australia (No. 2) [1931] A.C.
704; [1931] All E.R. 333.
(2) Duncan v Cammell Lord and Co. Ltd [1942] A.C. 624;
[1942] 1 All E.R. 587.
(3) Ellis v Home Office [1953] 2 Q.B. 135; [1953] 2 All E.R.
149.
(4) Broome v Broome (Edmundson Cited) [1955] 1 All E.R.
201; 99 S.J. 114.
(5) Grosvenor Hotel, London, Re (No. 2) [1965] Ch. 1210;
[1964] 3 All E.R. 354.

422
(6) Wednesbury Corporation v Ministry of Housing and Local
Government [1965] 1 All E.R. 186; [1965] 1 W.L.R. 261.
(7) Beaton v Skene (1860) 5 H.& N. 838; 2 L.J. Ex.430.
(8) Smith v East India Co. (1841) 1 Ph. 50; 11 L.J. Ch. 71.
(9) Wadeer v East India Co. (1856) 8 Do. G.M. & G. 182.
(10) Hennessy v Wright (1888) 21 Q.B. D. 509; 57 L.J.Q.B. 530.
(11) Home v Bentinck (Lord) (1820) 2 Brod.& Bing. 130; (1820)
Digest (Repl.) 387, 4162.

For the prosecutor: Cunningham.

For the accused: A. O. R. Mitchley.
For the State: Skinner, Attorney-General.
________________________________________
Judgment

EVANS, S.R.M.: In this case, N. J. Mbewe (hereinafter called 'the accused') is being
privately prosecuted for libel, contrary to section 168 of the Penal Code, by Roeland
Herman Heuff (hereinafter called 'the prosecutor'). The alleged defamatory matter was
published in a letter (hereinafter referred to as 'the letter') written by the accused in his
capacity as Acting General Secretary of the National Union of Commercial and Industrial
Workers (hereinafter called 'the Union') on the 10th July this year to the Permanent
Secretary to the Ministry of Labour and Social Development and copied to the General
Manager' Chilanga, the Lusaka Area Secretary of the Union, and to the Union's Branch
Secretary at Chilanga.

The prosecutor served a subpoena duces tecum upon the said Permanent Secretary,
requiring him to produce in court the letter and certain other correspondence. The
subpoena, I am told, was drawn in wide terms, and it caused the Minister of Labour and
Social Development (hereinafter called 'the Minister') to file an affidavit claiming State
privilege and therefore objecting to the production of the letter and other documents
listed in the schedules to his affidavit. The Attorney-General appeared for the State,
which, he stressed, has no other interest in these proceedings. Messrs C.J.I. Cunningham
and A.O.R. Mitchley of Counsel appeared for the prosecutor and accused respectively.
Mr Mitchley did not, of course, take any part on the question of State privilege.

I am satisfied, upon the authorities, that the Minister's objection has been taken in proper
form, and Mr Cunningham so conceded.

p113

[1] I am informed that this is the first occasion on which State privilege has been claimed
in a court in Zambia, and I think therefore that it will be convenient first to deal with the
relevant law, for the undisputed exposition of which I am indebted to the learned
Attorney-General.

423
For ease of reference, I now list the relevant authorities, most of which were quoted to
me, and I shall refer to them later by shortened names:

Robinson v State of South Australia (No. 2) [1931] All E.R. 333;

Duncan v Cammell Laird and Co. Ltd [1942] 1 All E.R. 587;
Ellis v Home Office [1953] 2 All E.R. 149;
Broome v Broome (Edmundson cited) [1955] 1 All E.R. 201;
Re Grosvenor Hotel, London (No. 2) [1964] 3 All E.R. 354;
Wednesbury Corporation and Others v Ministry of Housing and Local Government
[1965] 1 All E.R. 186.

I conclude from the authorities that the law is, subject to the effect of the recent
Grosvenor Hotel case, correctly stated in paragraph 73 on pages 53-4 of Volume 12 of
the 3rd Edition of Halsbury's Laws of England, from which the following is an extract:

" A document need not be produced for inspection, either on

discovery or at the trial, when objection is taken by a minister, who is the political head
of a government department, that disclosure of the document is contrary to public policy
or detrimental to the public interest or service. The privilege may apply to documents in
the possession of a private individual as well as to documents in the possession of the
Crown. Privilege can attach irrespective of where a document originates or in whose
custody it reposes provided that it has properly either emanated from or come into
possession of some servant or agent of the Crown.

The privilege is that of the Crown and can only be claimed

and waived by the authority of the minister and not by the authority of the person to
whom the document relates. Secondary evidence may not be given of documents for
which this privilege is established.... [A]nd the opinion has been expressed that the same
principle must apply to the exclusion of verbal evidence which, if given, would
jeopardise the interest of the community."

That is a brief statement of the law, and I now amplify it, principally by quoting from the
leading cases. I am satisfied that the law relating to State privilege in Zambia is the same
as that in Scotland and in countries of the Commonwealth, with the law of which (in this
regard) English law has recently been brought into line by the recent cases, in the Court
of Appeal, of the Grosvenor Hotel and Wednesbury Corporation.

In the Duncan v Cammell Laird case [1942] 1 All E.R. 587, in the House of Lords,
Viscount Simon, L.C., said at page 588:

p114

" This question is of high constitutional importance, for it

involves a claim by the executive to restrict the material which might otherwise be
available for the tribunal which is trying the case. This material one party, at least, to the

424
litigation may desire in his own interest to make available, and without it, in some cases,
equal justice may be prejudiced."

The question for determination by me is whether the State can and should be compelled
to produce in evidence in this court, in a criminal case between third parties and in which
the State is said to have no interest, documents which have come into the Minister's
hands in the discharge his official duties.

It was held in Duncan v Cammell Laird that an objection to the production of documents
duly taken by the head of a government department should be treated by the court as
conclusive, but, at any rate since Robinson's case in the Privy Council in 1931, the
position has been otherwise in Commonwealth countries, and I am satisfied that, in
Zambia, the law is that the objection of a Minister should not be conclusive, and that the
position is as stated by Lord Denning, M.R., in the Grosvenor Hotel case [1964] 3 All
E.R. 354, at pages 361 and 362:

" If the court should be of opinion that the objection is not

taken in good faith, or that there are no reasonable grounds for thinking that the
production of the documents would be injurious to the public interest, the court can
override the objection and order production. [2] [3] [4] It can, if it thinks fit, call for the
documents and inspect them itself so as to see whether there are reasonable grounds for
withholding them . . .It is rare indeed for the court to override the Minister's objection,
but it has the ultimate power, in the interests of justice, to do so."

In the present case, the Minister is objecting to production of a class of documents (which
includes the letter), in respect of which the judges in the Grosvenor Hotel case said that
the Minister should describe the nature of the class and the reason why the documents
should not be disclosed. In the Wednesbury Corporation case [1965] 1 All E.R. 186, in
which the same judges confirmed the views they had expressed in the Grosvenor Hotel
case, Lord Denning said, at page 190:

" We have had all the arguments over again, and I stand by all
that I said in Re Grosvenor Hotel, London (No. 2). ... I repeat that, in a case where a
Minister claims privilege for a class of documents, he must justify his objection with
reasons. He should describe the nature of the class and the reason why the documents
should not be disclosed, so that the court itself can see whether this claim is well taken or
not. The very description of the documents in the class may itself suffice, as, for instance,
confidential reports on officers in the Agony. There it is obvious that candour is
necessary and that the documents should not be disclosed; but if it be not obvious, then
reasons should be given. The Minister should consider every class of documents on its
merits, and only withhold them when he is satisfied that candour can only be secured by
complete confidence."

p115

425
It has repeatedly been said by the judges in the decided cases that the court will treat with
the greatest respect any affidavit in proper form in which it is claimed on behalf of the
Executive that a document or class of documents ought to be withheld from production
and that, if it is said that the production of a document is detrimental to the public service,
then it is a very strong step for the court to overrule that statement. This was emphasised
by Salmon, L.J., in the Grosvenor Hotel case regarding privilege attaching to
communications to a Minister, in particular to communications made under statutory
obligation. An application to the Minister to appoint a conciliator under section 6 of the
Industrial Conciliation Ordinance (Cap. 26) is not, I think, strictly a communication made
to him by virtue of a statutory obligation, but it is akin to it because the said section
prescribes the statutory procedure for the appointment of a conciliator.

The court's task here is to weigh in the balance two competing interests: on the one side,
the public interest, averred by the Minister, in the proper functioning of the public
service; on the other side the interests of justice as between the parties in this case. This is
no light task. I refer to further quotations from which I derive some help. On page 594 of
the report of the Duncan v Cammell Laird case [1942] 1 All E.R. 587, Viscount Simon
quoted the following words from the judgment of Pollock, C.B., in Beaton v Skene
(1860) 5 E. & N. 838, at 854: 'The administration of justice is only a part of the general
conduct of the affairs of any state or nation, and we think is (with respect to the
production or non-production of a state paper in a court of justice) subordinate to the
general welfare of the community'. In the Duncan v Cammell Laird case [1942] 1 All
E.R. 587, Viscount Simon said at page 595: 'After all, the public interest is also the
interest of every subject of the realm, and while, in these exceptional cases, the private
citizen may seem to be denied what is to his immediate advantage, he, like the rest of us,
would super if the needs of protecting the interests of the country as a whole were not
ranked as a prior obligation'. On the other hand, Morris, L.J., said in Ellis's case [1953] 2
All E.R. 149, at page 161: '[W]hen considering the public interest and what might be "
injurious to the public interest". . . it seems to me that it is to be remembered that one
feature and one facet of the public interest is that justice should always be done and
should be seen to be done', but I here observe that Ellis was suing the Crown, which is
not the position here, and [5] it must surely be more prejudicial to the interests of justice
to uphold the privilege and thereby possibly defeat a plaintiff's claim, when the State is
the defendant, than it is when the State is not a party.

As I have said, the Minister's affidavit is in proper form, and I am satisfied that, in
accordance with the authorities, the Minister has personally examined the relevant
documents, given his reasons for objecting to production, and has stated the nature of the
injury which he considers would be done to the public interest if they were disclosed. His
affidavit is on record and I think the material parts of it may be summarised as follows.
The letters and correspondence

p116

listed in the first schedule, including the letter, comprise an application to the Minister
and other letters written in connection therewith, to exercise the statutory discretionary

426
power vested in him by section 6 of the Industrial Conciliation Ordinance, where a trade
dispute exists or is apprehended, to appoint a conciliator. The documents listed in the
second and third schedules concern the like subject. For the purposes of these
proceedings, Mr Cunningham has indicated that he would be content for the court to
uphold the Minister's objection in regard to all the listed documents with the exception of
the letter. The State's contention is that the letter forms one of a class of documents which
ought to be privileged from production on the grounds of public interest because the
communications sent to and from the Minister's Ministry were furnished for his
information and guidance in the performance of his duties under the said Ordinance and
because their utility in this respect might be prejudiced if they were furnished by persons
in the knowledge that information contained in them might be disclosed to other persons
or used for the purpose of legal proceedings and because such knowledge would
prejudice the candour and completeness of the communications.

[6] As its title implies, the said Ordinance is concerned with conciliation, and I agree with
the Attorney-General's submission that the Minister should have the fullest, freest and
most complete information in order to exercise his statutory functions and that they are
matters of public interest in that the prevention or settlement of existing or apprehended
trade disputes are matters for the Minister to consider in the interests of the country as a
whole. As to prejudice to the candour and completeness of communications being a
matter of public interest and constituting a ground for protecting documents from
production, several cases have been decided, for example, Smith v East India Co. (1841) l
Ph. 50, and Wadeer v East India Co. (1856) 8 Dc. G.M.& G. 182, both referred to at page
592 of the report of the Duncan v Cammell Laird case [1942] 1 All E.R. 587, and this
reason for non-disclosure was one of the grounds for the Court of Appeal's not overriding
the Minister's objection in the Grosvenor Hotel case [164] 3 All E.R. 354, in which at
page 359, Lord Denning said:

" It [the Minister's affidavit] does not tell us why disclosure

would be injurious to the public interest. But in the course of the discussion, the
Attorney-General gave the reasons why. It was not because the disclosure of any of the
contents of the documents would be injurious to the public interest. The Attorney-
General told us that if we, the judges, saw the documents, we would not see anything in
them which would be injurious to the public interest. The reason for non-disclosure was
because in this class of document it was necessary to secure freedom and candour of
communication. The Minister had to take his decision on the best advice and with the
fullest information. He could get it only if those giving advice or information, or
receiving it, could rest assured that it was confidential and would not be disclosed in any
future litigation. Hence all communications with or within the Ministry should be

p117

privileged from production, even though the disclosure of

their contents would not in themselves be injurious to the public interest."

427
In the same case, Harman, L.J., quoted at page 365 from the judgment of Lord Lyndhurst,
L.C., in the Smith v East India Co. case (1841) 1 Ph. 50, these words from page 54:

" Now, it is quite obvious that public policy requires . . . that

the most unreserved communication should take place between the East India Company
and the Board of Control, that it should be subject to no restraint or limitations; but it is
also quite obvious that if, at the suit of a particular individual, those communications
should be subject to be produced in a court of justice, the effect of that would be to
restrain the freedom of the communications, and to render them more cautious, guarded,
and reserved."

Again, in the Grosvenor Hotel case, Salmon, L.J., referred to the fact that candour and
freedom of expression might be impaired if the relevant documents could be ordered to
be produced, and continued at page 368: '. . . accordingly their production would be so
much to the prejudice of the public interest, that, however pertinent they might be to the
issues in an action, they ought not to be produced'.

Upon all the authorities and having perused the Minister's affidavit and heard Counsel, I
am satisfied that the claim for State privilege is well founded in law, but I have further to
consider whether to inspect the documents and uphold the objection, properly weighing
the competing interests. Mr Cunningham is pressing for production of the letter only, but
I do not think that I can regard it in isolation because I am satisfied that it is one of a class
of documents to which reference has repeatedly been made. I see no point in inspecting
the original of the letter, because I have seen the copy of it on the record. It is exhibited to
the prosecutor's sworn complaint and, whilst that copy is not evidence, I know its alleged
contents and I shall, for the purposes of this ruling, assume that that copy is an accurate
one. Certainly, as Mr Cunningham submitted, the letter forms the basis for this
prosecution and, without its proper admission in evidence, it would appear that this
prosecution might fail. Do the interests of the prosecutor in clearing his name, and the
interests of justice in the prosecution and possible punishment of the accused for
allegedly publishing defamatory matter outweigh the public interest, and the possible
injury thereto? This question permits of no ready or easy answer.

[7] If I am in doubt, I should uphold the Minister's objection. This is, I think, clear from
the authorities. Lord Blanesburgh in Robinson's case [1931] All E.R. 333, said at page
342: '. . . the judge in giving his decision as to any document will be careful to safeguard
the interest of the State, and will not in any case of doubt resolve the doubt against the
State without further enquiry from the Minister'. I see no point in any such further inquiry
from the Minister in this case, in view of the contents of his affidavit and of the Attorney-
General's submissions.

p118

[8] It is also settled law that, if a claim for State privilege is upheld, then no secondary
evidence of the contents of a privileged document is admissible, whether written or
verbal - see the above mentioned quotation from the 12th Volume of Halsbury's Laws of

428
England; Broome v Broome [1955] 1 All E.R. 201, at pages 201, 202 and 204; and the
words of Devlin, J. (as he then was), in Ellis's Case [1953] 2 All E.R. 149, at page 155: '.
. . but no secondary evidence can be given of their contents, so that they must be treated,
therefore, as being obliterated from everyone's memory'. Mr Cunningham conceded that,
if the original of the letter were 'shut out', then the copies which he has would be equally
shut out.

[9] The accused sent copies of the letter to three addresses. The Attorney-General
contends that this circumstance should not deprive the State of the privilege claimed, and
he quoted the following part of the judgment of Viscount Simon in the Duncan v
Cammell Laird case [1942] 1 All E.R. 587, at page 589:

"It was urged before us that, whatever the true principles upon
which production of documents should be refused on the ground of public interest, some
of these documents could not be validly withheld because they had already been
produced before the tribunal of inquiry into the loss of the 'Thetis', over which Bucknill,
J., presided, and because some reference was made to them in his report (Cmd. 6190 of
1940). I am not convinced that in all cases a claim, validly made in other respects, to
withhold documents in connection with a pending action on the ground of public policy,
is defeated by the circumstance that they have been given a limited circulation at such an
inquiry, for special precautions may have been taken to avoid public injury, and some
portion of the tribunal's sittings may have been secret. Moreover, in point of fact,
Bucknill, J., does not set out these documents in extenso, and there must be other entries
in them which have not been reproduced. The appeal should be determined without being
affected by this special circumstance.'

The Attorney-General argues that the privilege is that of the State and that, because the
author of a document chooses to send copies to a few other people, the privilege should
not be lost. However, in Robinson's case [1931] All E.R. 333, at page 339, Lord
Blanesburgh said: 'Lastly, the privilege, the reason for it being what it is, can hardly be
asserted in relation to documents the contents of which have already been published'. I
have been unable to find any other authority upon this particular point, and Lord
Blanesburgh's comments are not easy to reconcile with what I have already quoted from
Halsbury concerning the privilege attaching irrespective of in whose custody the
document is. In this context, 'document' includes, I think, a copy in view of the law that
secondary evidence of its contents is inadmissible if it is privileged, and I think Lord
Blanesburgh was referring to documents whose contents had been revealed to the public
at large as opposed to (as in the present case) a few people, none of who is disinterested
in the apprehended trade dispute because one is the prosecutor's superior at Chilanga and
the

p119

others are Secretaries of the Union. In the result I conclude that the privilege is not
destroyed by the limited publication of the copies in this case.

429
All the above-mentioned cases were civil actions and, in Duncan v Cammell Laird [1942]
1 All E.R. 587, Viscount Simon said at page 591: 'The judgment of the House in the
present case is limited to civil actions and the practice, as applied in criminal trials where
an individual's life or liberty may be at stake, is not necessarily the same'. Quite how the
practice in civil actions and criminal trials may differ, I have been unable to ascertain. I
believe the principles are the same, but it may be that, in a case where the effect of
upholding State privilege would be to deprive an accused person of something essential
to his defence, and so prejudice his life or liberty, then the scales of the balance would be
weighted against the State. That, however, is not the case here - what is at stake is the
prosecutor's reputation and the trial of the accused and although the present case is a
criminal one it is in substance an action for defamation, and State privilege has been
established for documents in libel cases for example Hennessy v Wright (1888) 21 Q.B.
D. 509, and Home v Lord William Bentinck (1820) 22 Digest (Repl.) 387, 4162.

Having given anxious consideration to this matter, I have come to the conclusion, not
without reluctance, that the claim for State privilege should be upheld. Doubtless the
prosecutor may seem to be denied what is to his immediate advantage, but that is largely
a private or personal consideration, and the need to try and punish the accused, if he is
guilty, is a relatively minor consideration in the interests of justice. This ruling may or
may not prevent justice being done as between the prosecutor and the accused (and I have
an uneasy feeling that it will not appear to be done), but I regard the need to protect the
interests of the country as a whole as paramount to the other interests involved in this
case, and I am consequently not prepared to override the Minister's objection. The claim
for State privilege against production of the documents listed in the Minister's affidavit is
upheld.

Claim for privilege upheld

430
SATA v POST NEWSPAPERS Ltd and ANOTHER

HIGH COURT
NGULUBE, C.J.
13TH FEBRUARY, 1995

Flynote

(1) Constitutional law – Fundamental rights – Freedom of the press – Right to

reputation – Defamation – Fair comment – Public interest – Impersonal attack on
governmental operations – Whether defamation of official responsible – Whether
injury to official reputation – Extent of press freedom to express criticism –
Whether current law of defamation requiring modification – Defamation at, s 7 –
Constitutional of the Republic of Zambia 191, art 20.

(2) Tort – Defamation – ‘Rolled-up plea’ – Fair comment – Allegations patently

injurious to personal, private and official, political character – Whether
allegations based on inferences of fact – Whether inferences legitimately drawn
from other facts stated orindicated in publication complained of – Whether
protected as fair comment on matters of public interest.

(3) Tort – Defamation – Fair comment – Factual allegations proved in part or

notorious in public domain – Some allegations unproved – Whether defence of
fair comment available-Defamation Act, s 7.

431
(4) Remedies – Defamation – Injunction – Whether exemplary or punitive damages
appropriate – Primary object of award – Whether perpetual injunction appropriate
-Freedom of the press.

Headnote

The plaintiff, who was at all material times a politician and public official holding a
ministerial appointment, brought three actions for libel against the defendant, contending
that they had defamed him in their newspaper publications. In May 1992 the defendants
published an editorial article in their newspaper stating that the plaintiff was a political
survivor, and that in the second Republic ‘he survived vetting on several occasions’. The
article stated that in 1990 the plaintiff’s ‘political prostitution’ prompted the former
president’s decision to fire him. The article listed the plaintiff’s ‘thoughtless’ actions,
including the razing of houses, his alleged order to fire striking workers, the alleged
awarding of contracts to associate, riotous behaviour where some mourners from the
ruling party were stoned at a funeral and outrageous or intolerant behaviour on television.
The article referred to the Anti-Corruption Commission’s investigations against the
plaintiff and it concluded ‘there is nothing “honourable” about this clearly dishonourable
man’. The plaintiff issued proceedings in the first action against the defendant for the
remarks published which he claimed were defamatory. The plaintiff’s allegedly
thoughtless actions had been reported in various other newspapers with a national
circulation and on the electronic media. The plaintiff in a television programme took up
the official defence of the razing of houses and criticised the media in general and the
first defendants by name for their shortcomings when reporting on issues.

In the second action, which was consolidated with the first, the plaintiff complained
about the main story on the front page of the defendant’s newspaper in July 1992, which
reported that the plaintiff was beaten up by another minister in the National Assembly
motel bar room when the plaintiff provoked others by his belligerence and abusive
language. The plaintiff pleaded in his statement of claim that it was defamatory (I) to
impute that he was physically incapable of defending himself and (ii) to assert that he
could not even lose his good reputation, since he had none and that he was ‘not only
unruly, but…also greedy’ as alleged in the accompanying editorial.

In the third action the plaintiff complained of two articles together with a cartoon which
appeared in January 1993 in the defendants’ newspaper. The first article concerned the
plaintiff’s diversion for his own benefit of a government grant of K1.6bn to local
authorities which was meant for, inter alia, salary increases and arrears. A summary of a
report on the matter was subsequently distributed at a State House press conference. In
the second article the first defendant urged the president to remove the plaintiff from his
ministerial office and, relying on previous publications, stated that the plaintiff was petty
and unscrupulous. The cartoon depicted a large snake with a human head pinned down
by a prong on which was inscribed ‘1.6 billion’. The plaintiff’s nickname was ‘King
Cobra’. The statement of claim included a prayer for a perpetual injunction to restrain
the defendants from repeating the alleged libels. The defendants did not dispute having
published in their newspaper the articles and cartoon relating to the plaintiff which the

432
plaintiff alleged were libellous. They asserted in a rolled-up plea that those allegations
consisting of comments were fair comments on matters of public interest. Article 20(2)
of the Constitution of the Republic of Zambia 1991 provided that subject to the
Constitution’s provisions no law should make any provision that derogated from the
freedom of the press. The defendants submitted that s7 of the Defamation Act permitted a
reasonable margin of misstatement of facts on the defence of fair comment. The
defendant contended that the common law principles of the law of defamation in their
application to plaintiffs who were public officials as to their right of action should be
modified in relation to the burden and standard of proof and the latitude that the press
should be permitted in order to subject public officials to criticism and scrutiny.

HELD: Judgement for the plaintiff in part.

(1) In order to give effect to art 20 of the Constitution, which guaranteed the
freedom of the press, the law of defamation as currently applied was to be
interpreted as precluding impersonal attacks on governmental operations from
being treated as libels of an official responsible for those operations. It was of
the highest public importance that a democratically elected governmental body
should be open to uninhibited public criticism, and since the threat of civil
actions for defamation induced the chilling effect or tendency to inhibit free
discussion and placed an undesirable fetter on the freedom to express such
criticism, it would be contrary to the public interest for governmental
institutions to have any right at common law to maintain an action for damages
for defamation. Since those in public positions were taken to have offered
themselves to public attack, impersonal criticism of public conduct leading to
injury to official reputation should not attract liability provided that criticism
contained no actual malice and even if, pursuant to s 7 of the Defamation Act,
the truth of all facts alleged was not established, the imputation complained of
was competent on the remainder of the facts which were proved. Where an
allegation of libel could properly be regarded as comment on the conduct of a
public official in the performance of his official duties or on conduct reflecting
upon his fitness and suitability to hold office, freedom of speech and the press
could best be served by the courts’ insisting upon greater tolerance than in the
case of a private attack before an obvious comment based on substantially true
facts could be regarded as unfair. A balance had to be struck between freedom
of the press and the right to reputation guaranteed by art 20, which was not
possible by shifting the burden or standard of proof (see pp 73, post). New York
Times Co v Sullivan (1964) 376 US 254 and Theophanous v Herald and Weekly
Times Ltd [1994] 3 LRC 369 adopted.

(3) On established principles an allegation could be comment if it was an inference

of fact which could legitimately be drawn from other facts stated or indicated in
the publication complained of but where a bold allegation could not be distilled
from other facts started or indicated, it could not even be called a comment. It
followed that to call a politician and a minister a political prostitute was clearly
defamatory. The plaintiff in the first action could not be called a political

433
 prostitute for joining a party of his own choice after the reintroduction of a new
political dispensation allowing for the formation of other parties. The
allegation was patently injurious to the plaintiff in his private and personal
character and in his political and official character. In the second action the
evidence given to support the allegation of greed did not reveal any personal
benefit on the part of the plaintiff and constituted a personal attack upon him.
Greed was a personal characteristic and could not have been a criticism of the
plaintiff in any official capacity. Moreover, a fair-minded person could not
reasonably infer greed from such facts and the opinion cold not represent the
honest opinion of the writer. In the third action the allegations of corruption in
the editorial wee not justifiable or warranted by the facts available and were
indefensible as fair comment since there was little if any comment. It followed
that the editorial amounted to a flagrant attack on the very core of the personal
character and the private and public reputation of the plaintiff. Judgment
would accordingly be entered for the plaintiff with regard to those allegations
(see pp 76, 77, 78-79, 81-82, 83, 84, post). Kemsley v Foot [1952] 1 All ER 501
considered.

(4) Fair comment could not avail the defendant where the allegation made could
not fairly and reasonably be inferred from the facts. Although on a
consideration of the evidence the plaintiff in the first action was vetted on one
occasion only, the error in the number of occasions could not be regarded as
defamatory. Since the public and general readership of newspapers in the
country had been conditioned by previous publications to attach official blame
to the plaintiff with regard to his allegedly thoughtless actions, there was a
sufficient substratum of fact on which to base the comments made on the
razing of houses. In the second action in the context of the article as a whole it
was clear that the allegation in the editorial, that the plaintiff had no
reputation, was made as an inference of fact. Moreover, since bar-room brawls
were dishonourable and those who participated were rightly said to be unruly, it
followed that it was not defamatory to report that some one had been beaten,
especially by a much bigger opponent. In the third action on the evidence the
information concerning the diversion of the large sum of money was
substantially the truth. The cartoon was a satirical comment to the effect that
the plaintiff had been caught in some wrongdoing regarding the money
referred to and could not be construed in isolation. The nature of the
wrongdoing was fully discussed in the articles and it would be strange for any
reasonable reader to ignore the articles and to read meanings into the cartoon
independently of those articles. The inferences and comments on the true
representation of the facts in the third action were neither defamatory nor
actionable and it followed that the defence of fair comment applied to the
otherwise defamatory caricature. Even though there was insufficient evidence
to establish the truth of all of the allegations made by the defendants, the
imputations, except those relating to the personal character assassination, the
political prostitution and greed of the plaintiff, were competent on the facts
which were proved or notorious in the public domain and it followed that, in

434
 relation to those imputations, the defence of fair comment was available
pursuant to s 7 of the Defamation Act (see pp 78, 79-80, 81, 82, 83-84, post).

(5) Where there was little actual loss suffered by a plaintiff exemplary or punitive
damages were not appropriate, since the primary object of an award for
defamation was to offer vindication and solatium rather than monetary
compensation. On a consideration of all the circumstances, K500,000 would be
awarded by way of solatium to the plaintiff in respect of the consolidated
actions and an award of the same amount in respect of the third action. As the
plaintiff was a political figure, a perpetual injunction would inhibit free debate
on current and future, political matters and accordingly would not be granted
to restrain the defendants from publishing their opinions (see pp 84-85, post).
(Editor’s note: Article 20 of the Constitution of the Republic of Zambia 1991 is
set out at p 66, post.]

Cases referred to in judgment

(1) Afro-American Publishing co v Jaffe (1966) 125 US App Dc
70, 366 F 2d 649, US S.C.
(2) Barr v Matteo (1959) 360 US 564, 3 L Ed 2d 1434, US SC
(3) Buckley v New York Post Corp (1967) 372 F 2d 175, 2d Cir
(3) Cobbett-Tribe v Zambia Publishing Co Ltd [1973] ZR 9
(4) Curtis Publishing Co v Butts; Associated Press v Walker
(1967) 388 US 130, (1967) 18 L Ed 2d 1094, US SC
(5) Chicago (City) v Tribune Co (1923) 307 111 595, 139 NE 86,
US SC
(6) De jonge v Oregon (1937) 299 US 353, 81 L Ed 278, US SC
(7) Derbyshire CC v Times Newspapers Ltd [1993] 2 LRC 617,
[1993] 1 All ER 1011, [1993] AC 534, [1993] 2 WLR 449, UK HL
(8) Hunt v Star Newspaper Co Ltd [1908]2 KB 309, [1908-10]
All ER Rep 513, UK C.A.
(9) Kapwepwe v Zambia Publishing Co Ltd [1978] ZR 15 (S.C.)
(10) Kemsley v Foot [1952] 1 All ER 501, [1952] A.C. 345, UK
HL
(11) New York Times Co v Sullivan (1964) 376 US 254, 11 L Ed
2d 686, US S.C.
(12) Theophanous v Herald and Weekly Times Ltd [1994] 3 LRC
369, (1994) 124 ALR 1, Aus H.C.
(13) Time, Inc, v Hill (1967) 385 US 374, 17 L Ed 2d 456, US
S.C.
(14) Whitney v California(1927) 274 US 357, 71 L Ed 1095, US
S.C.

Legislation referred to in judgment

Zambia
1. Constitution of the Republic of Zambia 1991, art 20

435
2. Corrupt Practices Act
3. Defamation Act (Cap 70), ss 6, 7, 9, 10

United Kingdom
Fatal Accidents Act 1846; Libel Act 1843 (Lord Campbell’s Acts)

United States
Constitution (1787), First and Fourteenth Amendments

Other sources referred to in judgment

African Charter on Human and Peoples’ Rights, art 9
Convention for the Protection of Human Rights and Fundamental Freedoms
(Rome, 4 November 1950; TS 71 (1953); Cmd 8969), art 10
Douglas The Right of the People (1958) p 41
Gatley on Libel and Slander (8th edn, 1981) paras 695, 696, 884
International Covenant on Civil and Political Rights (New York, 16 December 1966; TS
6 (1977); Cmnd 6702), art 19

Actions
Michael Chilufya Sata, the plaintiff, brought three actions for libel against Post
Newspapers Ltd and Printpak Zambia Ltd, the defendants, which he contended published
defamatory articles in their newspapers, The Post and formerly The Weekly Post, in the
editions (i) dated 22 to 28 May 1992, (ii) dated 8 to 14 January 1993 and (iii) dated 31
July to 6 August 1992. The first two actions were consolidated and upon application the
court ordered that the third action be tried with the consolidated actions. The defendants
pleaded fair comment to all the allegations. The facts are set out in the judgment of
Ngulube,C.J.

For the plaintiff: Mundia F. Sikatana

For the first defendant: S. Sikota and S Nkonde
For the second defendant: E. Lungu
____________________________________
Judgment

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

There are three actions for libel in this case to which the defendants have pleaded fair
comment. Their rolled-up plea assets that those allegations consisting of fact are true and
those consisting of comments are fair comments on matter of public interest. In respect
of some of the matters complained of there is a denial that they could bear the defamatory
imputations assigned to them by the plaintiff in his pleadings. The plaintiff was at all
material times a politician and public official holding a ministerial appointment and it
was not in dispute that the defendants published in their newspaper ‘The Post’ (and
formerly ‘The Weekly Post’) the various articles and a cartoon complained of. The two
actions commenced in 1992 were consolidated, while I had in the early stages of the trial
allowed an application that the 1993 action be tried together with the consolidated action.

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Before analysing the issues raised in the pleadings and the evidence it is necessary to
give precedence to a proposition put forward by Mr Sikota and Mr Lungu which was to
the following effect as I summarise it. Because art 20 of the Constitution of the Republic
of Zambia 1991 specifically recognises, among others, the principle of the freedom of the
press, it is now time to modify the common law principles of the law of defamation in
their application to plaintiffs who are public officials as to their right of action, the burden
and standard of proof, and the latitude the press should be permitted to subject public
officials to criticism and scrutiny. It was argued that because of the similarity between
the provision in our Constitution and that of the USA, we should choose to follow the
line taken by the American courts rather than the one followed by the courts in England.
In this regard, it was submitted that I should apply the landmark case of New York Times
Co v Sullivan (1964) 376 US 254, 11 L Ed 2d 686 in which the Supreme Court of the
United States laid down some principles grounded in the First and Fourteenth
Amendments to fetter libel actions by public officials to the benefit of free speech and
press freedom. Our art 20 reads:

‘(1) Except with his own consent, no person shall be hindered in

the enjoyment of his freedom of expression, that is to say, freedom to hold opinions
without interference, freedom to impart and communicate ideas and information without
interference, whether the communication be to the public generally or to any person or
class of persons, and freedom form interference with his correspondence.

(2) Subject to the provisions of this Constitution no law shall make any provision that
derogates from freedom of the press.
(3) Nothing contained in or done under the authority of any law
shall be held to be inconsistent with or in contravention of this Article to the extent that it
is shown that the law in question make provision-(a) that is reasonably required in the
interest of defence, public safety, public order, public morality or public health; or (b)
that it is reasonably required for the purpose of protecting the reputations rights and
freedoms of other persons or the private lives of persons concerned in legal proceedings,
preventing the disclosure of information received in confidence, maintaining the
authority and independence of the courts regulating educational institutions in the interest
of persons receiving instruction therein, or the registration of, or regulating for technical
administration or the technical operations of, newspapers and other publications,
telephony, telegraphy, posts, wireless broadcasting or television, or (c) that imposes
restrictions upon public officers; and except so far as that provision or, the thing done
under the authority thereof as the case may be, is shown not to be reasonably justifiable
in a democratic society.’

The First Amendment to the United States Constitution reads, omitting the irrelevant:
‘Congress shall make no law… abridging the freedom of speech, or of the press.’ The
Fourteenth Amendment reads: ‘No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the United States.’ It should be noted
that there are international human rights instruments with similar provisions. For
instance, an English court would take heed of art 10 of the Convention for the Protection

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of Human Rights and Fundamental Freedoms (Rome, 4 November 1950; TS 71 (1953);
Cmd 8969) (the European Convention) which reads:

‘1. Everyone has the right to freedom of expression. This right

shall include freedom to hold opinions and to receive and impart information and ideas
without interference by public authority and regardless of frontiers. This Article shall not
prevent states from requiring the licensing of broadcasting, television or cinema
enterprises.

2. The exercise of these freedoms, since it carries with it duties

and responsibilities, may be subject to such formalities, conditions, restrictions or
penalties as are prescribed by law and are necessary in a democratic society in the
interests of national security, territorial integrity or public safety, for the prevention of
disorder or crime, for the protection of the reputation or rights of others, for preventing
the disclosure of information received in confidence, or for maintaining the authority and
impartiality of the judiciary.’

Then there is the United Nations International Covenant on Civil and Political Rights, art
19 of which is couched in even more sweeping terms:

‘(1) Everyone shall have the right to hold opinions without

interference.
(2) Everyone shall have the right to freedom of expression; this
right shall include freedom to seek, receive and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing or in print, or in the form of art, or through
any other media of his choice.
(3) The exercise of the rights provided for in paragraph 2 of this
article carries with. It special duties and responsibilities. It may therefore be subject to
certain restrictions, but these shall only be such as are provided by law and are necessary;
(a) for respect of the rights or reputations of others; (b) For the protection of national
security or of public order (ordre public), or of public health or morals.’

In the case of Zambia and other African countries, there are also the more modest
provisions of art 9 of the African Charter on Human and Peoples’ Rights which declare
the right of every individual to receive information and to express and disseminate his
opinions ‘within the law’.

I make reference to the international instruments because I am aware of a growing

movement towards acceptance of the domestic application of international human rights
norms not only to assist to resolve any doubtful issues in the interpretation of domestic
law in domestic litigation but also because the opinions of other senior courts in the
various jurisdictions dealing with a similar problem tend to have a persuasive value. At
the very least, consideration of such decisions may help us to formulate our own
preferred direction which, given the context of our own situation and the state of our own
laws, may be different to a lesser or greater extent. What is certain is that it does not
follow that because there are these similar provisions in international instruments or

438
domestic laws, the courts in the various jurisdictions can have or have had a uniform
approach. For one thing, as the examples I have quoted show, the right to free expression
and free speech is qualified by exceptions, in some cases more heavily than in others.
For another, we are at different stages of development and democratisation and the courts
in each country must surely have regard to the social values applicable in their own
milieu. The question before me in these actions is whether the law of defamation as
currently applied derogates from, among others, the freedom of the press guaranteed by
art 20 and if so what modifications would reasonably be required to be imported or
imposed in order to give effect to the intention of the Constitution.

Counsel for the defendants argued that Sullivan provides a suitable precedent of the
attitude and direction the courts in Zambia ought to take. The First Amendment is not
even as elaborate as our art 20 but the Supreme Court of the United States was able to
imply some requirements in order to promote the freedom guaranteed by the
Constitution. They said they had no difficulty in distinguishing among defamation
plaintiffs and categorised them as plaintiffs who are public officials on the one hand and
those who are private individuals on the other. They held that the constitutional
guarantee of freedom of speech and press prohibits a public official from recovering
damages for a defamatory falsehood relating to his official conduct unless he (the
plaintiff) proves that the statement was made with ‘actual malice’, that is with knowledge
that it was false or with reckless disregard of whether it was false or not; finding that such
a qualified privilege of honest mistake of fact is required by the First and Fourteenth
Amendments in order to give citizens and newspapers a ‘conditional privilege’
immunising non-malicious defamatory misstatements of fact regarding the official
conduct of a government officer.

Since the defendants rely quite heavily on Sullivan and other American cases, I intend to
consider some of these cases in greater detail in a moment. However, I think it is
important for me at this stage to dispel any suggestion that only the American courts or
the common law as applied in that country have recognised the importance of the
freedom of free speech and the press in a democracy nor the banaful effects of libel
litigation on the free press. The chilling effect or the tendency to inhibit free discussion
induced by litigation or threats of litigation is universally recognised and no doubt taken
into account particularly when the matter concerns public institutions and public officials
as well as the public interest. There is in fact a lot more in common among the common
law jurisdictions than there are differences. Thus the underlying rationale for protection
free speech and its importance to good governance and democracy, the question of the
public conduct of public officials, the liability of public persons to greater scrutiny,
considerations of what matters can properly be regarded as matters of public interest,
protection for private reputation and character, all these and many more generally find
common expression and treatment. These seem to be differences when it comes to local
variables in the limits afforded by the recognised defences, any local statute law on the
subject and the factors entitling or disentitling the plaintiff to a remedy. Certainly
Sullivan introduced modifications which have not found universal acceptance when it
restricted a public official’s right to redress in libel action by finding a conditional
privilege, by changing the burden and standard of proof, by narrowing the common law

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ambits of express or actual malice available to a public official and by positively
condoning defamatory falsehoods unless the plaintiff proves actual malice a narrowly
defined by that august court. Even the defence of fair comment which is based on the
availability of a sufficient substratum of true facts and which is generally defeasible if
grounded on misstatements was heavily adjusted against the public official in favour of
free speech and press. Thus we find that the court held that the Fourteenth Amendment
required recognition of a conditional privilege for honest misstatements of fact so that
fair comment should be available for honest expression of opinion based on the
privileged but false facts, to the same extent as comment on true facts, unless the plaintiff
public official proves actual malice and this to the higher standard of proof of ‘convicting
clarity’ found to be required by the Constitution.

For completeness, I should refer to some aspects of Sullivan with which most courts
would have no difficulty. The libel action was brought in a state court (circa 1960) by a
public official against a newspaper and the authors for publication of an advertisement
describing the maltreatment in an Alabama city of negro student protesting against
segregation. There were references in the article to harassment of Dr Martin Luther King
who was allegedly frequently arrested for trivial alleged infractions and whose residence
had been physically attacked, the use of excessive force by the police to break up
peaceful demonstrations by negro students and their sympathisers, and a reference to
Constitution-violators in the south trying very hard to kill the movement for negro rights,
including desegregation and the right to vote. The criticisms were aimed at officialdom
and the police generally; the plaintiff was not personally identified nor targeted and the
United States Supreme Court, quite properly in my view, criticised the attempt by the
plaintiff to transmute the impersonal criticism of government into personal criticism of
himself as the official heading the department in charge of the police. As headnote 38 of
the report puts it:

''the constitutional guarantee of freedom of speech and press

precludes an otherwise impersonal attack on governmental operations from being treated
as a libel of an official responsible for those operations.''

I am myself nor surprised that the United States Supreme Court overturned the lower
court’s verdict, as it were, even on the merits. There was clearly no reference to the
plaintiff so that the newspaper did not write of or concerning him. Even the few factual
errors which were there (that Dr Martin Luther King had been arrested seven times
instead of four, and that the police had ‘ringed’ a university campus when in fact they had
been deployed there but without literally surrounding the campus) were properly
accepted as inevitable in any free debate; they did not go to the root of the genuine
grievance, the subject of the publication, which was undoubtedly a matter of much
current public interest. Section 7 of our Defamation Act – which I will be coming to late
– would have applied to save the plea of fair comment if this case had been tried in our
courts and there had been a proper reference to the plaintiff personally.Where there has
been impersonal criticism, I would myself go along with the reasoning in Sullivan. It is
this same type of reasoning which led the House of Lords in Derbyshire CC v Times
Newspapers Ltd [1993] 2 LRC 617, [1993] AC 534 to hold that a local authority cannot

440
bring an action for libel. Their Lordships held that, since it was of the highest public
importance that a democratically elected governmental body should be open to
uninhibited public criticism, and since the threat of civil actions for defamation would
place an undesirable fetter on the freedom to express such criticism, it would be contrary
to the public interest for institutions of central or local government to have any right at
common law to maintain an action for damages for defamation; and that, accordingly, the
plaintiff council was not entitled to bring an action for libel against the defendants. I
entirely agree with this conclusion.

The question arises: should the rationale and principles relating to impersonal criticism be
extended to public officials in the wholesale manner suggested by the submission in this
case? In the opinion of the court in Sullivan, which was delivered by Brennan J, stress
was laid on the fact that the alleged libellous publication caused injury to official
reputation. The court weighed the public interest of the public’s receiving information
against possible injury to the official reputation of public figures and took the view that
the chances of injury to the private or personal characters were usually very small when
the discussion was on official conduct. The judges were ever so careful to draw the
distinction between injury to official reputation arising from official conduct and injury to
the personal character of an official. The protection of Constitution was not extended to
injury to private character or the private conduct of a pubic official. I would like to quote
perhaps usually extensively from the separate opinion of Goldberg J in Sullivan (1964)
376 US 254 at 301-303, 11 L Ed 2d 686 at 720-722:

''Our national experience teaches that reparations breed hate

and 'that hate menaces stable government.' Whitney v. California, 274 US 357, 375, 71 L
Ed 1095, 1106 (Brandies, J., concurring). We should be ever mindful of the wise counsel
of Chief Justice Huges: '[I]mperative is the need to preserve inviolate the constitutional
rights of free speech, free press and free assembly in order to maintain the opportunity for
free political discussion, to the end that government may be responsive to the will of the
people and that changes, if desired, may be obtained by peaceful means. Therein lies the
security of the Republic, the very foundation of constitutional government.' De Jong v.
Oregon, 299 Us 353, 365, 81 L Ed 278, 284. This is not to say that the Constitution
protects defamatory statements directed against the private conduct of a public official or
private citizen. Freedom of press and of speech insures that government will respond to
the will of the people and that changes may be obtained by peaceful means. Purely
private defamation has little to do with the political ends of a self-governing society. The
imposition of liability for private defamation does not abridge the freedom of public
speech or any other freedom protected by the First Amendment. This, of course, cannot
be said 'where public officials are concerned or where public matters are involved …
[O]ne main function of the First Amendment is to ensure ample opportunity for the
people to determine and resolve public issues. Where public matters are involved, the
doubts should be resolved in favor of freedom of expression rather than against it.'
Douglas, The Right of the People (1958), p 41. In many jurisdictions, legislators, judges
and executive officers are clothed with absolute immunity in the discharge of their public
duties. See e.g., Barr v. Matteo 360 US 564, 3 L Ed 2d 1434, City of Chicago v. Tribune
Co. 307 I11., 595 at 610, 139 N.E. at 91. Judge Learned Hand ably summarized the

441
polices underlying the rule: It does indeed go without saying that an official, who is in
fact guilty of using his powers to vent his spleen upon others, or for any other personal
motive not connected with the public good, should not escape liability for the injuries he
may so cause; and, if it were possible in practice to confine such complaints to the guilty,
it would be monstrous to deny recovery. The justification for doing so is that it is
impossible to know whether the claim is well founded until the case has been tried, and
that to submit all officials, the innocent as well as the guilty, to the burden of a trial and
to the inevitable danger of its outcome, would dampen the ardor of all but the most
resolute, or the most irresponsible, in the unflinching discharge of their duties. Again and
again the public interest calls for action which may turn out to be founded on a mistake,
in the face of which an official may later find himself hard put to it to satisfy a jury of his
good faith. There must indeed be means of punishing public officers who have been
truant to their duties; but that is quite another matter from exposing such as have been
honesty mistaken to suit by anyone who has suffered from their errors. As is so often the
case, the answer must be found in a balance between the evils inevitable in either
alternative. In this instance it has been thought in the end better to leave unredressed the
wrongs done by dishonest officers that to subject those who try to do their duty to the
constant dread of retaliation '.''

The foregoing is instructive. Another American case which was cited and which I have
considered is Curtis Publishing Co v Butts; Associated Press v Walker (1967) 388 US
130, 18 L Ed 2d 1094, where the United States Supreme Court extended the Sullivan
principle to public figures who are not public officials. The court was very careful not to
give the impression that the press were to be given a blank cheque to embark upon a
course of destruction of the reputations of public officials or public figures. As Harlan J
pointed out (388 US 130 at 146-147, 18 L Ed 2d 1094 at 1106):

''We are told that '[t]he rule that permits satisfaction of the
deep-seated need for vindication of honor is not a mere historic relic, but promotes the
law’s civilizing function of providing an acceptable substitute for violence in the
settlement of disputes,' Afro-American Publishing co. v. Jaffe 125 U.S. App. D.C. 70, 81,
366 F. 2d 649, 660, and that: 'Newspapers, magazines, and broadcasting companies are
businesses conducted for profit and often make very large ones. Like other enterprises
that inflict damage in the course of performing a service highly useful to the public…
they must pay the freight; and injured persons should not be relegated [to remedies
which] make collection of their claims difficult or impossible unless strong policy
considerations demand.' Buckley v. New York Post Corp. 373 F. 2d 175, 182. We fully
recognize the force of these competing considerations and the fact that an
accommodation between them is necessary not only in these cases, but in all libel actions
arising from a publication concerning public issues. In time, Inc., v Hill 385 U.S. 374,
388, 17 L Ed 2d 456, at 467 we held that '[t]he guarantees for speech and press are not
the preserve of political expression or comment upon public affairs…' and affirmed that
freedom of discussion 'must embrace all issues about which information is needed or
appropriate to enable the members of society to cope with the exigencies of their
period'.''

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The court went on to counsel against ‘blind application of New York Times Co v
Sullivan.’ I would respectfully take heed of such counsel.

Before I can consider whether the Sullivan approach can be regarded as desirable or
necessary in Zambia in order to lend greater meaning and effect to the intention of our
are 20, I have to examine the framework of the law of defamation which is currently
available to us. As Mr Sikatana correctly submitted, I have to bear in mind the
exceptions under at 20, especially that relating to reputation which has not been limited to
private or official reputation but is a right necessarily guaranteed to everyone. I am also
alive to the provisions of the Defamation Act which in s 7 (for fair comment) and s 6 (for
justification) offer relief by permitting a reasonable margin of misstatement of facts, one
of the matters that preoccupied the court in Sullivan. Section 9 of the Act offers relief by
giving the newspapers qualified privilege in the circumstances set out in the section and
the schedule, details of which I need not here recite save to observe that the qualified
privilege covers a fairly wide range of subjects of public interest. Again s 10 offers relief
for non-malicious libels published without actual malice and without gross negligence
under the conditions described in the section to which reference should be made for its
full term and effect. These were some of the obvious benefit and promotion of free
speech and press. I have also considered the common law applicable, which is the same
as that in England and, in this regard, I have had a quick look at a Gatley on Libel and
Slander (8th edn, 1981) especially in the passages dealing with the public interest and
comment on matters of public interest. Paragraph 695 discusses whether the press have
any special rights not shared with everyone else to make a comment upon a public officer
or person occupying a public situation and concludes that they do not. On the authorities
therein cited, a journalist may go to whatever lengths the ordinary citizen may go and,
except where the statute law otherwise provides, the range of his assertions, his criticism,
or his comments, is as wide as, and no wider than, that of everyone else. Again the
authorities discussed in para 884 show that the limits of comment on a matter of public
interest are very wide indeed, especially in the case of public persons. When under attack,
those who fill public positions must not be too thin-skinned. They are also taken to have
offered themselves to public attack and criticism and the public interest requires that
public conduct shall be open to the most searching criticism. In my considered opinion,
the so-called public official doctrine urged by Mr Sikota already receives recognition
though not exactly in the manner proposed by Sullivan. Even the so-called ‘Fish Tank’
theory whereby the public conduct of public persons is subjected to constant observation
and scrutiny is already otherwise recognised. The chilling effect of libel actions on the
freedom of the press so vital to democracy is universally accepted although the strategies
to counter this may differ. The Americans came up with Sullivan. The English in the
Derbyshire County Council case came up with disallowing local and central government
organs. They have also encouraged a wider scope of comment on public matters. With
regard to false material, the Defamation Act already mitigates in some way the common
law principles which condemn misstatements and attach unfairness to any comment
which is not well grounded. All these matters formed the basis of the discussion in
Sullivan which sought to modify these shared principles in order to straighten free speech
and press and impose fetters on public plaintiffs. The common law as developed through
the cases and generally also has an established set of principles, though some still evolve

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as circumstances change or arise. Thus the matters to be proved by a plaintiff and those
to be proved by the defendant are fairly well settled whether the defence is non-
publication or non-reference, lack of defamatory meaning, consent of the plaintiff,
justification, absolute or qualified privilege, fair comment, apology and payment into
court under Lord Campbell’s Acts, offer of amends under the Defamation Act, accord
and satisfaction, and in the case of slander only, lack of special damage where required
or remoteness of the same, mere vulgar abuse, and so on. The principal defence in the
cases before me is that of fair comment on matters of public interest. The common law
has evolved a number of considerations which would establish malice or render a
comment unfair. The effect of Sullivan was to narrow quite considerably, in relation to a
public official, the range of factors that would prove malice or render a comment unfair.
It also extended quite considerably the relief available to the press whose injurious
shortcomings were to be given a generous amnesty. It also established a novel type of
qualified or conditional privilege available to all.

Our Constitution in art 20 recognised both the freedom of the press and the right to
reputation. A balance has to be struck and I do not consider that a good balance can be
struck by shifting the burden or standard of proof, nor by straining to discover a new
qualified privilege, nor by immunising falsehoods to any greater extent than the
Defamation Act already provides.

Let me make it clear that I fully endorse the view that some recognition ought to be given
to the constitutional provisions in art 20 and I accept that impersonal criticism of public
conduct leading to injury to official reputation should generally not attract liability if
there is no actual malice and even if, pursuant to s 7 of the Defamation Act the truth of all
facts alleged is not established if the imputation complained of is competent on the
remainder of the facts actually proved. However, I would reject the proposition in
Sullivan to the extent that it sought to legalise character character assassination of public
officials or to shift the burden of proof so that knowledge of falsity or recklessness
should be proved by the plaintiff and to a degree of convincing clarity. In this regard and
although I do not necessarily wish to follow the way they sought to give recognition to
their own constitutional provisions, I find that the Australians properly rejected the
Sullivan approach in Theophanous v Herald and Weekly times Ltd [1994] 3 LRC 369,
124 ALR 1. The High Court of Australia said ([1994] 3 LRC 369 at 391-392, 124 ALR 1
at 23-24):

''However, once it is acknowledged, as it must be, that the

existing law seriously inhibits freedom of communication on political matters, especially
in relation to the views, conduct and suitability for office of an elected representative of
the people in the Australian Parliament, then, as it seems to us, that law is inconsistent
with the requirements of the implied freedom of free communication. The law of
defamation, whether common law or statute law, must conform to the implication of
freedom, even if conformity means that plaintiffs experience greater difficulty in
protecting their reputations. The interests of the individual must give way to the
requirements of the Constitution. At the same time, the protection of free communication
does not necessitate such a subordination of the protection of individual reputation as

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appears to have occurred in the United States. For that reason the defendant should be
required to establish that the circumstances were such as to make it reasonable to publish
the impugned material without ascertaining whether it was true or false. The publisher
should be required to show that, in the circumstances which prevailed, it acted
reasonably, either by taking some steps to check the accuracy of the impugned material
or by establishing that it was otherwise justified in publishing without taking such steps
or steps which were adequate. To require more of those wishing to participate in political
discussion would impose impractical and, sometimes, severe restraint on commentators
and others who participate in discussion of public affairs. Such a restraint would severely
cramp that freedom of political discussion which is so essential to the effective and open
working of modern government. At the same time, it cannot be said to be in the public
interest or conducive to the working of democratic government if anyone were at liberty
to publish false and damaging defamatory matter free from any responsibility at all in
relation to the accuracy of what is published. In other words, if a defendant publishes
false and defamatory matter about a plaintiff the defendant should be liable in damages
unless it can establish that it was unaware of the falsity, that it did not publish recklessly
(i.e., not caring whether the matter was true or false) and that the publication was
reasonable in the sense described. These requirements will redress the balance and give
the publisher protection, consistently with the implied freedom, whether or not the
material is accurate. In one other respect the Sullivan concept of actual malice calls for
some justification. As already noted, the common law connotation of malice embraces
ill-will, spite and improper motive. There is an argument for saying that 'actual malice'
should likewise extend to such motivating factors. However, it seems to us that, once it
is accepted that it is necessary to show that the publication was reasonable in the sense to
which we referred, there is no occasion to include malice according to its common law
understanding as an element in the test to be applied. It will be noted from the preceding
paragraphs that we do not consider that the plaintiff should bear the onus of proving that
the publication is not protected. In our view, it is for the defendant to establish that the
publication falls within the constitutional protection. That approach accords with the
approach that the courts have taken in the past to proof of matters of justification and
excuse and we are not persuaded that the constitutional character of the justification
should make any difference to the onus of proof. Whether the defendant has acted
reasonably will involve consideration of any inquiry made by the defendant before
publishing that is a matter peculiarly within the knowledge of the defendant.''

If we were in the same boat with the Americans and the Australians, I would hide with
the Australians and the way they have proposed to protect the freedom to debate political
issues and the fitness of a politician to hold office. In both countries, they distilling some
principles by implication after finding that their Constitutions required such an exercise.
In contrast, our own Constitution is less vague, though I agree with the general principle
of not simply allowing the existing law of defamation to operate without due regard to
the need to lend greater meaning and effect to the art 20 provisions. The dilemma is that
our Constitution attaches equal importance to freedom of the press and the right to
reputation, without distinction whether such reputation belongs to a private or public
individual. I have agonised and given very careful consideration to the competing
propositions that it is for the interests of society that the public conduct of public men

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should be criticised without any other limit than that the writer should have an honest
belief that what he writes is true; and the equally important public interest in the
maintenance of the public character of public men for the proper conduct of public affairs
which requires that they be protected from destructive attacks upon their honour and
character if made without any foundation. I have come to the conclusion that there is no
need to formulate a new set of principles to impose new fetters on the right of a public
official to recover damages. However, in order to counter the inhibiting or chilling effect
of litigation, I am prepared to draw a firms distinction between an attack on the official
public conduct of a public official and imputations that go beyond this and attack the
private character of such an official which attack would be universally unsanctioned. I
am also prepared, when considering the defence of fair comment on a matter of public
interest arising from the conduct of a public official, to be more generous and expansive
in its application. Of course, it would be unwise for me to attempt an exhausive
description of what would be a generous application of the defence but it seems to me
that where an allegation complained of can properly be regarded as comment on the
conduct of a public official in the performance of his official duties or on conduct
reflecting upon his fitness and suitability to hold such office, freedom of speech and press
can best be served in Zambia by the courts insisting upon a higher breaking point, or a
greater margin of tolerance than in the case of a private attack before an obvious
comment based on facts which are substantially true can be regarded as unfair. Although
considerably stretched at the seams, the existing defence would remain intact and the
public official still able to recover damages for comment that is rendered unfair by any
outrageous or aggravating features in the case.

In a sum, it is my considered opinion that the constitutional protection of reputation and

free speech or press can best be balanced in Zambia, when the plaintiff is a public official
who has been attached in that character, by a more generous application of the existing
defences. The chilling effect of litigation would thereby be mitigated to some extent, just
as it would be considerably eased by the courts constantly seeking to promote free speech
and press by keeping a careful eye on the size of awards which perhaps are the true
chilling factor especially if they involve any exemplary or punitive element. What is
certain also is that, as Mr Sikatana suggested, since both the freedom of the press and the
right to reputation are recognised in art 20, no higher value can be placed on the one as
against the other nor can one part of the Constitution be said to conflict with another part
in any ‘unconstitutional’ way since the whole document legalises itself. The trick is to
balance the competing rights and freedoms and on principles, as I hoe I have managed to
explain, the resolution lies in the application of the existing law in a more imaginative
and innovative way in order to meet the requirements of an open and democratic new
Zambia. In this way, the press can be given some breathing space without the courts
suggesting that freedom of the press will be freedom to defame. So much being
premised, I now turn to the cases before me.

I heard evidence from 21 witnesses. The plaintiff testified on his own behalf and called
one witness, while the defendants called 19 witnesses. In all the cases, there was no
dispute that the articles complained of were published and that they explicitly referred to
the plaintiff. The action 1992/HP/1395 was based on an article headed ‘Michael Sata’ in

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the newspaper dated 22 to 28 May 1992 and the article appeared on what loosely be
termed the editorial page. The plaintiff relied on the natural and ordinary meaning and/or
innuendo and attributed several defamatory imputations to the article. The defence put
forward was one of fair comment. The article started by noting that the plaintiff was a
political survivor, adding that in the second Republic ‘he survived vetting on several
occasions.’ The evidence which I have accepted is that the plaintiff was vetted only on
one occasion and not several as alleged. The vetting referred to the practice in the past
when the leadership of the sole party then allowed used to screen candidates for election
and bar those whose candidature was considered to be inimical to national interests. I do
not regard the reference to vetting or the error in the number of occasions as defamatory.
Next, the newspaper wrote that in 1990 the plaintiff’s political prostitution prompted the
former president’s decision to fire him. To call a politician and a minister a political
prostitute is clearly defamatory. The defendants’ position was that this statement was a
fair comment being a conclusion which could legitimately be made from the facts. Of
course, I do not doubt the principle that an allegation can still be a comment if it is an
inference of fact which could legitimately be drawn from other facts. However, where a
bold allegation of this kind cannot be distilled from other facts stated or indicated in the
publication complained of: See Kemsley v Foot [1952] 1 All ER 501, [1952] A.C. 345. I
am prepared to stretch the requirement of indication to any facts shown to be notorious or
at least known to the person or persons to whom the libellous allegation is published. If
the facts are not so indicated or referred to, then it has long been accepted that the
statement of opinion will stand in the same position as an allegation of fact: see Gatley
para 696. In reference to this allegation, the editor of the defendant newspaper, Mr Phiri,
testified that the conclusion was based on reports they had received and the fact that the
plaintiff had accepted a post in the MMD government contrary to his earlier declaration
at a political rally that he was not interested in a political position. Mr Phiri said that it
was left up to the readers to figure out the political prostitution which had prompted
President Kaunda to fire the plaintiff. Mmembe, the editor-in-chief and managing
director of the paper, testified that the plaintiff was labelled a political prostitute for
jumping from one party (the UNIP) to another (the MMD) and for having associated with
the people in the MMD before he was fired. None of these explanations was available to
the readers and they were neither offered nor was it indicated in the publication in order
to afford the readers the opportunity to form their own judgment on the matter and to
judge whether the defendants’ conclusion was competent or not. The reader was left to
speculate and think that the paper must have its own secret facts for making such a bold
allegation, unsupported by anything available to the readers. In any event, even had the
reasons revealed to the court been made available to the readers, I cannot imagine that
anyone would consider a person to be a political prostitute for joining a party of his own
choice after the reintroduction of a new political dispensation allowing for the formation
of other parties. This allegation was patently injurious to the plaintiff in his private and
personal character and in his political and official character and cannot conceivably be
protected by the defence put forward, even on a more generous application of it as I have
earlier proposed.

The article complained of went on to describe the plaintiff in other extravagantly

uncomplimentary terms. These included a list actions described as ‘thoughtless’ such as

447
the razing of houses in Kanyama, his alleged order to fire striking workers, the alleged
awarding of contracts to associates, riotous behaviour in Chadiza and outrageous or
intolerant behaviour on television. There was a reference to investigations against the
plaintiff by the Anti-Corruption Commission and the plaintiff’s misleading the nation
about the presence of an arms cache at Sindamisale. After criticising the President for not
dismissing the plaintiff, the defendants concluded by saying ''Our sincere conclusion is
that there is nothing “honourable” about this clearly dishonourable man.''

I have given anxious consideration to the rest of this generally defamatory article. The
examples of allegedly thoughtless actions are subjects that had been reported in various
other newspapers with a national circulation and on the electronic media. The evidence
that I heard from the witnesses, including General Chinkuli on the arms cache, together
with the documentary exhibits, especially The Times of Zambia and Zambia Daily Mail
newspapers, has satisfied me that there was a sufficient substratum of facts on which to
base the comments made. The question is not whether I agree with the comments or the
conclusions but whether an honest person, however prejudiced, might hold such opinions.
Even the disputable conclusion that there was nothing honourable about the plaintiff was
prefixed by a list of circumstances and the reader was free to form an independent
opinion and to judge if the paper was right or wrong. I am, of course, alive to the
contention on the part of the plaintiff that the defendants either did not substantiate the
facts or made mistakes. For example, I am aware that the plaintiff has never accepted
that he had personally ordered the razing of houses. However, other daily newspapers
produced in evidence as exhibits showed that the plaintiff was in the forefront in
defending this action by the local council. They also showed that the plaintiff was held
accountable in his official capacity as the minister of local government at the time, rather
than in his private capacity. That the plaintiff took up the official defence of the razing of
houses was also manifest in the ‘Face to Face’ television programme which was played
back to the court during these proceedings. I am satisfied that, by the time the defendants
listed the razing of houses as one of the plaintiff’s allegedly thoughtless actions, the
public and general readership of newspapers in this country had already been conditioned
by previous publications to attach official blame. The example that the plaintiff ordered
the firing of striking workers was not supported by any evidence whether direct or
indirect in these proceedings. However, it was just one example out of several given to
support the comment about being thoughtless and the Defamation Act applies to the
failure to establish the one example. The example regarding the award of contracts to
associates was not borne out by the evidence concerning the contract awarded to Merzaf
to build houses in Chilenje township. I find that the plaintiff was not guilty of any
wrongdoing and this was borne out by the evidence of Mr Russell of the Anti-Corruption
Commission. However, the evidence-including the ‘Face to Face’ programme – showed
that the plaintiff has been reported on the subject and had stoutly defended the contract,
once again leading to public attribution of the now costly project to him in his official
capacity. Indeed, I accept the evidence that this contract ran into difficulties the minute
the plaintiff left the Ministry of Local Government and Housing and the successors
refused to give it the support which the plaintiff had given in his time. There were other
contracts concerning the sale of council houses which the plaintiff had to facilitate or
authorise. The plaintiff himself gave me a long list of names, including that of his wife,

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as being the people allowed to buy council houses. I am satisfied that the example about
awarding contracts was supported by a sufficient amount of actual fact. Concerning the
alleged riotous behaviour in Chadiza, there was indirect evidence given although no
previous newspaper reports were produced to me. From the evidence of some defence
witnesses, including Mr Nkolola of ZNBC, I accept that there was an incident in Chadiza
where some mourners from the ruling party were stoned at a funeral and which was even
discussed on a television programme although the tape for this could not be found. There
was nothing to show that the plaintiff provoked the incident. The television programme
publicly seen by viewers was also one of the programmes relied on to support the
allegation that the plaintiff behaved outrageously and intolerantly on television before the
whole nation. The other was the ‘Face to Face’ programme shown to the court where the
plaintiff was interviewed by Mrs Goretti Mapulanga, a well-known interviewer on our
small screens. In that programme, the plaintiff criticised the media in general and the
first defendants by name for their shortcomings when reporting on issues. He defended
the award of the contract to Merzaf, the razing of houses by the council, early retirements
for council workers and the handling of the funds meant for arrears of salaries and
allowances which the government had inherited. The general impression gained by this
court after watching the replay of the programme was that both the guest and the hostess
were quite rumbustious, jovial and slightly disorderly. I am satisfied that the example
and comment regarding the performance of the plaintiff on television was based on a
sufficient substratum of fact. Again the article went on to refer to the plaintiff’s denials
that the Anti-Corruption Commission was investigating him. The evidence before me
established the factual basis for the comments made. The global conclusion in the article
about the plaintiff not being honourable was certainly harsh and probably an opinion not
shared by anyone else but, as I have already stated, it was prefixed by the examples
which were listed. The law protects even the minority opinion of a defendant who
honestly comments on a public official and has facts to lean on.

Except for the allegation that the plaintiff was a political prostitute, on which I find for
him, I find for the defendants on the rest of the article in cause 1992/HP/1395. On the
evidence, and if necessary calling in aid the Defamation Act, the defence of fair comment
is available on these other allegations or comments having regard to such of the facts as
have been established or were already notorious in the public domain.

In cause number 1992/HP/1804, the complaint concerned the edition of 31 July to 6

August 1992. There were two articles, that is the main story on the front page headlined
''King Cobra meets his Waterloo-Lupunga clobbers Sata'' and an editorial under the
heading ''Sata(nic) deeds''.

The gravamen of the main story was that the plaintiff was physically clobbered by
another minister in the National Assembly motel bar room when the plaintiff provoked
the other by his belligerence and abusive language. The first defendant described the
incident in gloating terms showing that blows were exchanges and the plaintiff ended up
lying helpless on the ground, hurt and humiliated, and had to be rescued by the security
men from further damage. The plaintiff’s account of the incident was characterised by
excessive economy on the truth and only skilful and determined cross-examination prised

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an admission from him that any ill-tempered confrontation had taken place at all
between himself f and Minster Lupunga. I have considered the evidence from the eye
witness. There are four stages of drunkenness, namely jocose, bellicose, lachrymose and
comatose. The evidence and the descriptions of the events left me in no doubt at all that
the ministers, and probably some of the witnesses had passed the first stage. The eye
witnesses called by the defence were basically agreed that a quarrel erupted and Lupunga
violently charged towards the plaintiff, knocking down the witness Nganga who was in
the way, and with, quite clearly, obvious intent. One witness said the plaintiff was
actually violently pushed so that he fell against the back of a sofa chair while the other
said that Lupunga was restrained before he could carry out his intentions so that the
plaintiff was simply at the risk of being clobbered rather than that he was clobbered.
Both eye witnesses denied that fists flew, or that the plaintiff ended up lying on the
ground or that any security men intervened. I agree with the witness who said the
defendant had sensationalised the incident. I find they were gloating and full of glee
over the supposed thrashing of the plaintiff. The bottom line, however, was that violent
confrontation which disturbed the peace and was unsuitable for ministers to participate in
did take place. This I find as a fact.

What was the sting of the libel complained of in this particular article? The plaintiff
pleaded in his statement of claim that it was defamatory to impute that he was physically
incapable of defending himself. I thought that the plaintiff did nor pursue this line of
complaint with any conviction and I do not think that it would be defamatory to report
that someone has been beaten. The plaintiff, I find, was not in fact beaten and the
gloating style adopted by the paper grossly exaggerated the physical confrontation that
did take place. The fracas itself was not something any minister could be proud of and it
was not wrong to suggest that a bar-room brawl of this kind was dishonourable and that
those who participated were unruly. The opinion was amply supported by the true facts
once the overdramatisation is discounted. Indeed, the cause of action based on this
particular article came very close to collapsing of its own inanition. I find for the
defendants on this one. The next article in the particular edition was the editorial headed
''Sata(nic) deeds''. The article is worth reproducing and it reads:

''Not only is your edition of the Weekly Post this week a

celebratory one, commemorating our first anniversary, but it is also rather 'Satamanian'.
If newspaper printing costs were low, and newsprint cheap, Sata’s exploits could quite
easily provide copy to fill a tabloid newspaper every week. Two months ago, we said
there was nothing honourable about this clearly dishonourable man, and we also
lamented about his risky behaviour at a Chadiza funeral, when he endangered the lives of
dignified men, among them, Home Affairs Minister Newstead Zimba. Soon after that,
his foolish behaviour during a ZNBC panel discussion, under the guise of 'chimbuye',
was quite objectionable. We are not surprised that his penchant for controversy led to his
being beaten last Sunday. It was bound to happen. And were it not for the brave security
guard on duty, you might have been reading an obituary of the once notorious King
Cobra. This time, however, the motel fracas not only endangered Lupunga’s reputation,
but it could have also led to his imprisonment on charges of assault, or worse,
manslaughter or murder, if things had gotten more out of hand. But as for Sata, he would

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have had nothing to lose, not even a loss of good reputation, since he has none. This man
is not only unruly, but he is also greedy. Early this year, when Lusaka City Council had
stopped the sale of its houses. Sata ordered that a house be sold to his father-in-law.
And now when the entire Avondale area is all but dry for lack of water, he has directed
the Lusaka Water and Sewerage Company to deliver a tanker of water every week to
Sharry Hill house, one of his Avondale properties. Our ability to comment on his on
going court case with the Zambia State Insurance Corporation concerning his activities at
the Avondale Housing project is curtailed by legal sub judice restrictions. But early this
year, Sata diverted K60 m earmarked for LCC workers’ salaries, to pay for the Merzaf
project in Chilenje. Now, after bashing ZULAWU and promising that by 30 June, its
members’ salary increments would be paid, he has diverted K1.6 bn to the Merzaf project
and to a fixed deposit account at Standard Bank. While President Chiluba has the
prerogative to hire and fire his ministers, keeping track of the misdeeds and unscrupulous
behaviour of Michael Chilufya Sata is for us, becoming rather tiresome.''

Can be seen, the alleged Sata(nic) deeds have been tabulated. The article contains in the
main comments based on facts stated or indicated in the article itself. Such facts have
been sufficiently established by the evidence. I have been troubled though by the
allegation that the plaintiff would have had nothing to lose out of the incident at the
motel: ''not even a loss of good reputation, since he has none.''

The law presumes that everyone has a good reputation and where this is shown not to be
the case, a plaintiff with a bad reputation is equally entitled to have what is left of it
protected from further damage. However, in the context of the article as a whole, it was
clear that the defendants were making the allegation as an inference of fact which none
the less remained a comment or opinion, on the basis of the events tabulated in the first
half of the article.

The article then went on to allege that the plaintiff was ‘not only unruly, but he is also
greedy’. To support the latter allegation of greed, which was the sting of the libel, the
article listed the sale of a council house to the plaintiff’s father-in-law, the arrangement
for the delivery of water to his Avondale residence, his court case which in the event he
actually won against the developers of Avondale, diversion of K60 m, money intended
for salaries and the deposing of K1.6 bn which was meant for workers’ salaries.
‘Greedy’ in this context and in its ordinary sense denoted an insatiate appetite to acquire
wealth or material benefits. It is a very personal characteristic and could not have been
criticism of the plaintiff in any official capacity. The evidence which I heard did not
support any suggestion of personal benefit in the derogatory or infamous sense suggested
by the article. No evidence was led to support greed on the part of the plaintiff in
connection with his court case mentioned in the article, nor was any evidence adduced to
establish the fact of, let alone the greed in allegedly diverting K60 m for workers’ salaries
to the Merzaf contract. The evidence led did not reveal that there was any personal gain
on the rest of the transactions listed, with the exception of the deliveries of water in a
tanker from which service other Avondale residents also benefited. It is my considered
opinion that this portion of the editorial article imputed a corrupt or dishonourable motive
which was not warranted by the facts. Greed was not an inference which a fair-minded

451
person might reasonably draw from such facts and cold not, I find, represent the honest
opinion of the writer. On my expansive application of the defence of fair comment when
it relates to the official conduct of a public official, the defence would have been
available if the allegation had not been of so personal a trait as greed so that mere
unfairness of the comment for imputing defamatory but impersonal motives would have
not been fatal. However, since a description that a person is greedy and the imputation
that the transactions cited were examples of and, by implication, motivated by greed as it
is understood in its ordinary sense was a description attacking the personal and private
character of the plaintiff, there is no occasion for departing from the general principle.
This principle is that fair comment cannot avail the defendant where the allegation made
cannot fairly and reasonably be inferred from the facts. The defamatory allegation then
stands unsupported and is on the same footing as an allegation of fact: see Cobbet-Tribe
v Zambia Publishing Co Ltd [1973] ZR 9. In the event the conclusion in the editorial
under discussion that the plaintiff’s behaviour was unscrupulous was equally
insupportable in view of my finding on the question of greed although, for the purpose of
my decision, the relevant sting was only in the allegation that the plaintiff was greedy. I
find for the plaintiff to the extent indicated.

In the action 1993/HP/821 which was tried together with the consolidated actions, the
edition of the paper was dated 8 to 14 January 1993, and there were two articles
complained of together with a cartoon. The front page article was headed ‘ACC hands
over King Cobra docket to DPP over financial irregularities-Sata faces arrest’. The
article concerned a sum of K1.6bn government grant to local authorities which was meant
for, inter alia, salary increases and arrears as a result of negotiations between the unions
and the representatives of the councils. The evidence which I heard established that it
was entirely true and the ACC had investigated and handed over a docket to the DPP with
a view to secure his consent to the prosecution of the plaintiff under the Corrupt Practices
Act for failing to disclose interest in a contract and abuse of office in connection with the
plaintiff’s orders to his officials that they must place the bulk of the grant money (K1.2
bn) in a deposit account with Standard Chartered Bank, a bank in which he had shares. It
was also true that the plaintiff did not take the advice of Mr Mapala, his Permanent
Secretary, about the choice of bank since another bank was offering a better rate of
interest. The plaintiff explained why he had chosen the particular bank but that is beside
the point. The point is that the article is that the article was so factually true that the
witness from the ACC, Mr Russell, suspected there had been a leak and the first
defendant had had access to the docket. A summary of the report of the ACC was
subsequently distributed by the President through his aides at a State House press
conference. Although there may be nothing commendable about the way the information
was obtained, the report was substantially the truth and none of the imputations pleaded
by the plaintiff can be entertained. The inferences and comments on such a true
representations of the facts were neither defamatory nor actionable, and I so find.

The next article in the paper was an editorial headed ‘Remove Sate.’ In unmannerly and
extravagant choice of diction, the first defendant urged the President to remove the
plaintiff from his ministerial office. The first paragraph read:

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 ''We have said it before and we will say it again that Michael
Chilufya Sata is not fit to be a minister or hold any public office. Sata is not only a
public nuisance but he is also a liar as well as a selfish, unfeeling and cantankerous
character.''

The defendants relied on previous publications and incidents as well as the one about the
imminent arrest. They warned of some harm to the presidency and referred to the
plaintiff as one of the petty and unscrupulous politician. They suggested the President
remove the plaintiff without waiting for the Paris Club, among others, to show contempt
for corruption and said the plaintiff was beyond redemption. The paragraph I have quoted
and the other aspects I have isolated cumulatively amounted to a flagrant attack on the
very core of the personal character and the private and public reputation of the plaintiff. I
see little if any comment in the allegations of fact and the imputations made. The first
defendants were asserting that the plaintiff was this or that and I am myself unable to see
that the allegations could fairly and reasonably be inferred from the facts so as to still be
a comment appears as an inference drawn from those facts, any injustice that it might do
will be to some extent negatived by the reader seeing the grounds upon which he
unfavourable inference is based. But if fact and comment be intermingled so that it is not
reasonably clear what portion purports to be inference, he will naturally suppose that he
injurious statements are base on adequate grounds known to the writer, though not
necessarily set out by him. In the one case the insufficiency of the facts to support the
inference will lead fair-minded men to reject the inference. In the other case it merely
points to the existence of extrinsic facts which the writer considers to warrant the
language he uses.’

I am aware that the Hunt case need to be qualified by more recent developments, namely
the facts on which a comment is made do not always have to be set out in the publication
complained of but can be implied from the terms of the publication if indicated with
sufficient clarity. The only indication which was there in this case was that the first
defendant was relying on previous publications by them and others and on the same
edition’s front page story. However, the number of independent and original allegations
of positive fact in the passages I have quoted especially the suggestion of corruption are
such that there was, in my considered view, no comment at all, not even one based on
inference. If I am wrong in this conclusion, I would still find the passages indefensible as
fair comment on the ground that the comment, if it was indeed comment, was not
justifiable or warranted by the facts available. I find for the plaintiff on this.

Finally, there was next to the defamatory editorial a cartoon depicting a large snake with
a human head and which was pinned down by a prong on which was inscribed ‘1.6
billion’. The evidence showed that the plaintiff has the nickname of King Cobra and the
cartoon related to the front page story and the editorial comment. I agree entirely that the
cartoon cannot be construed in isolation from the front page article and the editorial.
Although it was not funny, the cartoon was none the less a satirical comment to the effect
that the plaintiff had been caught in some wrongdoing regarding the money referred to in
the other article. The nature of the wrongdoing concerning this money was fully
discussed in the articles and it would be strange for any reasonable reader to ignore the

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articles and to read meanings into the cartoon independently of those articles. I am
aware of the argument that even an illiterate might look at a cartoon and come to some
unfavourable conclusions based on the fertility of the imagination. Illiteracy, as we all
know, is a misfortune and not a privilege and the standard to be applied in a case arising
out of the written word is that of the reasonable reader, that is, a literate reasonable
person who can read the captions and relate pictures to their context. Any meanings
assigned by an out-of-context illiterate imagination would not qualify as the reasonable
understanding of the judicially acceptable reasonable average person who ordinarily
reads newspapers. I am aware of the meanings contended for by the plaintiff both in the
pleadings and in the evidence. In context, the cartoon added nothing much to the front
page article and was therefore fair comment based on true facts the cartoon has the same
flavour as the lead story and my considered view is that the defence of fair comment
applies to this otherwise defamatory caricature.

In sum, the plaintiff succeeds in the consolidated action only in respect of the allegations
that he was a political prostitute and that he was greedy. In the other action, the plaintiff
succeeds only in respect of the flagrant attack in the ‘Remove Sata’ editorial where the
various imputations I have already alluded to were made, especially the allegation of
corruption; imputations which would stab through even the thicket skin of any public
person. These were serious libels but I bear in mind the whole of the context and the
circumstances, including any role contributed by the plaintiff himself in exposing himself
to frequent attention of the press. He has had opportunities to take a retaliatory swipe at
the defendants as the court saw when the video tape of the ‘Face to Face’ television
programme was played. I am also alive to the facts that during these proceedings, the
plaintiff was less than candid at times and even managed to spin an elaborate tale that he
was in India when the President held a press conference and distributed a summary of the
report by the ACC. The video tape produced by the witness Nkoloka showed the plaintiff
was present and that was the day his transfer to the Ministry of Health was announced. I
have taken into account the offer of the right to reply made by the first defendant which
cancels quite substantially any failure to retract and apologise. The defendant has also, in
a way, won on some aspects of the case; just as the plaintiff has also not suffered much
actual damage.

Above all, however, I have taken into account the submissions by Mr Sikatana and Mr
Sikota. I have considered the Kapwepwe v Zambia Publishing co Ltd [1978] Z.R. 15 and
bear in mind that the primary object of awarding damages for defamation is to offer
vindication and solatium; money cannot really be compensation in such cases. The
principles of exemplary or punitive damages discussed in Kapwepwe and other cases
apply only in an appropriate case where the general damages, incorporating any
aggravating element, are insufficient to drive home to a defendant the error of his way. I
am myself not in favour of encouraging the notion of punishment in a civil case,
especially where there has been little actual loss suffered by the plaintiff. I did also say
much earlier on that I considered the true chilling effect on the freedom of speech and
press to emanate from the possibility of awards which are exorbitant and crippling.
There was also a prayer for a perpetual injunction to restrain the defendants from
repeating the libels complained of. With the vindication and consolation afforded by this

454
judgment, I do not consider that it would be appropriate to restrain the defendants
forever. The plaintiff is a political public figure and a permanent injunction, like any
excessive award, would be certain to inhibit free debate even on current and future
subjects. Newspapers which cause damage while performing a vital public service should
only be made to pay the freight but not be altogether stopped dead in their tracks.

Taking all the circumstances into account, I award in respect of the consolidated action
the sum of K500,000 (five hundred thousand Kwacha) and for the 1993 action another
sum K500,000 (five hundred thousand Kwacha) making a total of K1m compensatory
damages by way of solatium. I enter judgment for the plaintiff in that amount with costs
to be taxed in default of agreement.

EDITH ZEWELANI NAWAKWI (Female) v THE ATTORNEY GENERAL (1991)

S.J. (H.C.)

HIGH COURT
MR. JUSTICE C, M. MUSUMALI
24TH DAY OF JUNE, 1991
1990/HP/1724

Flynote

Freedom of movement - whether passport office requires both parents' consents to

include children on passports - single parent family - recognision under Zambian Law.

Headnote

The applicant was an unmarried mother of two boys. She was a Zambian citizen and had
held two Zambian passports. The first one, which was expired at the time she brought this
action, was No. ZA 088728 (IDI). Her two children were endorsed in that passport,
although one of them, the younger one was later deleted from it because he was issued
with a travel document in London to enable him travel alone from London to Lusaka.
That travel document had since expired, she said.Following the expiry of the first
passport she applied for its renewal and the inclusion of her children in it. She got a new
passport she said, but her children were refused to be included in it.She made sought
various applications to the court.

Held:

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(i) the petitioner has been unfairly discriminated against on the ground of sex

(ii) the petitioner’s children’s particulars be indorsed in her present passport

without a requirement for her to furnish fresh affidavit or other fresh
documents in respect of them,

(iii) a single parent family headed by a male or female is a recognised family unit in
the Zambian society

(iv) a passport is part of the freedom of movement and as such it is a right for every
Zambian to have one or be indorsed in one unless there is a valid legal excuse
barring such possession or endorsement; and

(v) A mother of a child does not need to get the consent of the father to have her
child/ren included in her passport or for him/or them to be eligible for
obtaining passports or travel documents.

For the Applicant: Mrs L. Mushota and Associates

For the Respondent Mr. E. Sewanyana - State Advocate
_________________________________________
Judgment

MR. JUSTICE C, M MUSUMALI.: delivered the judgment of the court.

This is a petition filed by the Applicant in which she is asking the court to make a number
of declarations. Those declarations are, as summarised in paragraph 12 of her said
petition that:

(1) She has been and continues to be unfairly discriminated

against on the ground of sex.
(2) Since she had previously furnished the Department of
Passport and Citizenship with satisfactory documentary evidence as to the personal
particulars and social status of the two children (i.e David Kayivwambile Siwakwi, born
31/7/83 at Lusaka and Mbwiga Mlozi Siwakwi born on 10/6/88 in London) the officers
of the (said) Department are estopped by record and past conduct from refusing the
application to endorse on the Petitioner’s new passport the personal particulars of the said
children of her single parent family.
(3) A single parent family headed by a female be recognised as a
family unit in the Zambia society.
(4) Upon the birth of a child to a single mother, the name of the
father shall only be included on the child’s birth certificate if the father is physically
present at the Registrar General’s office on the day of the Registration of the child’s birth,
otherwise, the single mother should be declared the sole guardian and custodian of the
child without undue administrative impediments.

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 AND such other Orders or Directions or Reliefs as shall to the
court seem appropriate for the purpose of enforcing or securing the enforcement of
Articles 13 and 25 of the (Republican) Constitution in relation to the petitioner.

(5) A passport is a right which is incidental to and consequent

upon the petitioner’s citizenship. Thus the inclusion of the petitioner’s Zambian
children’s particulars on her passport is a matter which is a natural incidence and
consequence of both the petitioner’s and the children’s Zambia Citizenship; and
(6) Consequently upon (5) the petitioner’s said children have
been, are being and are likely in the future to be hindered in their enjoyment of freedom
of movement out of and back into Zambia, otherwise guaranteed them under Article 24
of the Constitution.

She also prays for the costs of this action to be granted to her. The petition was based on
the provisions of Articles 13, 25 and 29 of the Republican Constitution:

ARTICLE 13 Provides as follows:

It is recognised and declared that every person in Zambia has been and shall continue to
be entitled to the fundamental rights and freedoms of the individual, that is to say, the
right whatever his race, place of origin, political opinions, colour, creed or sex, but
subject to the limitations contained in Article 4 (which has since been amended) and in
this Part, to each and all of the following, namely:

(a) Life, liberty, security of the person and the protection of the
law;
(b) Freedom of conscience, expression, assembly and
association; and
(c) Protection for the privacy of his home and other property
without compensation;

And the provisions of this Part shall have effect for the purpose of affording protection to
those rights and freedoms subject to such limitations of that protection as are contained
in Article 4 and in those provision, being limitations designed to ensure that the
enjoyment of the said rights and freedoms by any individual does not prejudice the rights
and freedoms of others on the public interests.

ARTICLE 25 provides as follows leaving out provisions which are irrelevant to this
case:

(1) Subject to the provisions of clauses (4) (5) and (7) no law
shall make nay provision that is discriminatory either of itself or in its effect.
(2) Subject to the provisions of clauses (6) (7) and (8), no person
shall be treated in a discriminatory manner by any person acting by virtue of any written
law or in the performance of the functions of any public office or any public authority.

457
(3) In this Article , the expression “discriminatory” means
affording different persons attributable wholly or mainly to their respective descriptions
by race, tribe, place of origin, political opinions colour or creed whereby persons of one
such description are subjected to disabilities or restrictions to which persons of another
such description are not made subject or are accorded privileges or advantages which are
not accorded to persons of another such description.
(4) Clause (1) shall not apply to any law so far as that law makes
provisions -
(a) --------------------------------------------------------------------------
----------------
(b) --------------------------------------------------------------------------
----------------
(c) With respect to adoption, marriage, divorce, burial,
devolution of property on death or other matters of personal law;
(d) --------------------------------------------------------------------------
------------; or
(e) Whereby persons of any such description as is mentioned in
clause (3) may be subjected to any disability or restriction or may be accorded any
privilege or advantage which, having regard to its nature and to special circumstances
pertaining to those persons or to persons of any other such description, is reasonably
justifiable in a democratic society
(5)
--------------------------------------------------------------------------
----------------
(6) Clause (2) shall not apply to anything which is expressly
or by necessary implication authorised to be done by any such provision of law as is
referred to in clause (4) or (5)

(7) Nothing contained in or done under the authority of any law shall be held to be
inconsistent with or in contravention of this Article to the extent that it is shown that the
law in question makes provision whereby persons of any such description as is mentioned
in clause (3) may be subjected to any restriction on the rights and freedoms guaranteed by
Articles ----, -----,-----,------, and 24, being such a restriction as is authorised by Article
---(----), ----(----), -----(----), -----(----) and 24 (3) as the case may be
(8)
--------------------------------------------------------------------------
-------------------------

And Article 29 provides as follows, leaving out what is not relevant in this case:

(1) Subject to the provisions of clause (6), if any person alleges

that any of the provisions of Article 13 to 27 (inclusive) has been, is being or is likely to
be contravened in relation to him, then without prejudice to any other action with respect
to the same matter which is lawfully available, that person may apply to the High Court
for redress
(2) The High Court shall have original jurisdiction -

458
 (a) To hear and determine any application made by any
person in pursuance of clause (1);
(b)
--------------------------------------------------------------------------
---------------
and may, subject to the provisions of clause (8), make such
orders, issue such writs and give such directions as it may consider appropriate for the
purpose of enforcing or securing the enforcement of any of the provisions of Article 13 to
27 (inclusive)

(3) --------------------------------------------------------------------------
-------------------------
(4) --------------------------------------------------------------------------
-------------------------
(5) --------------------------------------------------------------------------
-------------------------
(6) --------------------------------------------------------------------------
-------------------------
(7) --------------------------------------------------------------------------
-------------------------
(8) --------------------------------------------------------------------------
-------------------------

In this case I heard the evidence of the petitioner only. She

told the court that she is not married; that she is a mother of two boys. Kayivwambile
Siwakwi aged seven and Mbwiza Mlozi Siwakwi aged two and a half years; that
Kayivwambile was born in the University Teaching Hospital Lusaka, and the other child
in the West Minister Hospital London. She went on and said that she is a Zambian
citizen. She has held Zambian Passports: The first one, which is now expired was No.
ZA 088728 (IDI) Her two children were endorsed in that passport, she said; although one
of them, the younger one was later deleted from it because he was issued with at travel
document in London to enable him travel alone from London to Lusaka. That travel
document has since expired, she said.

Following the expiry of the first passport she applied for its
renewal and the inclusion of her children in it. She got a new passport she said, but her
children were refused to be included in it.

She then explained that when she had the first child, in order
to get his birth certificate she was made to swear an affidavit showing that (1) she was the
mother of that child and (2) he was born out of wedlock. After that she applied to the
passport office for his inclusion in her passport.

459
 Again she was asked to swear an affidavit similar to the one
she had sworn to get the child’s birth certificates. She swore that affidavit and had the
child included in the passport i.e the first passport.

She went on and said that she did not have any problems to
include the second child in her passport. This was because his father filled in all the
relevant documents in London and they were handed in and processed by the Zambian
High Commission. She attacked that practice because it recognises a foreign male, as
was the case in this case as the father of her second child is a Tanzanian, but refuses to
recognise a Zambian Female, who is a parent of a child.

The petitioner then explained that when she was issued the second passport, she was
again asked to swear fresh affidavit of the sort she had sworn and filed to get
Kayivwambile’s birth certificate and to have him included in the expired passport. She
then drew the attention of the passport officer who was handling her application to the
presence of the details he wanted to know about her and her children in those affidavits
and in Mbwiga’s expired travel documents, which were in the possession of that
(passport) office. The officer told her that much as he appreciated that the regulations
and procedures he was enforcing were unfair to women, there was nothing he could do
about them, but follow them. Explaining the implication of the application of those
regulations and procedures to her second child it was that she had to get the consent of
the Tanzanian father to the inclusion of that child in her Zambian passport. It meant also
that she had to swear those affidavits every time she was renewing her passport and/or
whenever she had a new child as a single parent. These procedures were lengthy, costly,
discriminatory and demeaning to her, she said. She therefore decided to petition against
these procedures.

Talking about the specific forms which are used by the Passport Office she said that
Form D which is the ‘Application of children or child under the age of Sixteen Years to
be added to Passport of a Relative, is discriminatory because only the father is recognised
as the legal custodian of a child. Yet the mother of a child is the only one who will really
know who the father of the child is/was.

Maternity is the only thing that no one will question, she said. She then said that the
word "father" ”on Form D should have been used in a broader sense to indicate physical
and emotional support for the child/children, at least in the case of single parent family
headed by a woman.

The respondent did not call any witness/es). They intimated that they would only be
putting in written submissions. That was on the 21st of March 1991, no such
submissions had been received from them by this court. Mrs Mushota for the applicant
sent in hers at the beginning of May.

Upon consideration of the evidence and said submissions in this case I have found the
following facts as proved; that:

460
(1) The petitioner is a Zambian.
(2) She is single.
(3) She is the mother of David Kayivwambile Siwakwi and
Mbwiga Mlozi Siwakwi.
(4) David will be eight years old on 31st July 1991 and Mbwiga
three years old on 10th June 1991.
(5) David’s unknown father is/was a Zambian.
Mbwiga’s unknown father is/was a Tanzanian.
I have used the words is/was because both or either of those
men may/could have died since the 21st March 1991 when the petitioner last appeared
and gave evidence before this court in this case.
(6) The Plaintiff applied for and was issued with a Zambian
passport number Za 088728. This passport was issued on 24th June 1980.
(7) On the 8th of October 1985 David’s personal particulars were
endorsed in that passport. The procedure she went through before David’s particulars
were endorsed in the said passport will be explained later in this judgment. Mbwiga’s
particulars were endorsed in the passport in London. I will also explain how that was
done in the course of this judgment.
(8) As time went on, that passport expired. The applicant then
applied for a new passport and that her two children’s particulars should also appear.
(9) She was issued the new passport No. ZB10738; but her
children were endorsed in it.
(10) In order to have those children endorsed in the new passport
she was asked to swear fresh affidavits in respect of them to show their parentage.
(11) She was not keen to swear fresh affidavits.
(12) Because of her refusal to comply with the fresh affidavits
requirement her children were not and I think have not up to now been endorsed in her
new passport.

In this matter it was not disputed that in order to get the birth certificate of David the
petitioner was asked by the office of the Registrar of Births, Deaths and Marriages to
swear an affidavit showing David’s parentage. That was done and the birth certificate
Number LUS/67/84 was issued. She then took that certificate to the Passport Office and
applied for the endorsing of David’s particulars in her passport. She was again asked to
swear an affidavit, identical to the one she had sworn for the birth certificate. The
essence of that/those affidavit/s was that they showed that the petitioner was the mother
of the child/children and that they were born out of wedlock. Upon production of that
affidavit to the passport office, David’s particulars were endorsed in the first passport, as
already found.

As for Mbwiga, his endorsement was done in London at the Zambian High Commission
with relative ease. This is because his Tanzanian father was in attendance and filled-in
all the relevant documents.

The facts revealed by this case show that a mother of a child is not regarded by the
Government to be an equal parent to a father. The father has been made to have more say

461
over the affairs of a child at least in so far as the endorsement of the particulars of the
child and the issuing to a child of a passport or a travel document are concerned. This
has been done by the Government of this country through the institution of the practice of
asking for a father’s letter of consent when matters of passports and travel documents
affecting children have had to be dealt with at Passport Offices; as well as when
obtaining children’s birth certificates, at least during the life times of the fathers. This
practice is discriminatory to mothers on no other basis than the fact that they are females.

Yet the mother is the one who must have conceived and carried that child in her womb
for nine months more or less and then gone to the maternity ward to deliver. Having
delivered she is again the one with the responsibility of looking after that child through
the tender stages, feeding it and doing all the motherly chores until it gets out of its
infancy. Some fathers have had to do those chores mothers do for infants but those have
been in cases where due to one reason or the other the mother is not able to do those
herself. Such situations are exceptions to the general rule. The mother, in a normal
situation, continues to perform some very essential roles in the up-bringing of the
children. The father also plays equally important roles, if he is a responsible father. In
my considered view it is not at all justified from whatever angle the issue is looked at, for
a father to treat himself or to be treated by the institutions of society to be more entitled to
the affairs of his child/ren than the mother of that child or those children. The mother is
as much an authority over the affairs of her child/ren as the father is. There would of
course be some cases where one of the parents may lose, temporarily or forever, his/her
share of that entitlement. Such a situation may arise where a parent abandons a child or
children or becomes so mentally sick that the best interests of the child or children would
dictate his/her exclusion from him/her or them. Each such case would of course depend
on its own facts.

The realities of these times have brought about another dimension to this problem of
child/ren male parentage. This case now before this court is one in point. Here the
petitioner is both the father and mother of the two children. She is an unmarried mother.
She is bringing up her two children without a husband. Now is it fair for this society to
have to require of her to have been or to be married in order for certain things to be
possible to be done for her children? The answer, in my considered view, is in the
negative! It is in the negative because firstly the reality of her situation and of many
others like her, is that she has illegitimate children; and secondly because discrimination
based on genda only has to be eliminated from our society. Men and Women are partners
and not only partners but equal partners in most human endeavours. They must thus be
treated equally.

I noticed at the bottom right side of From D the words October 1963. I interpreted this to
mean that either that was the month and year when that Form came into effect or that that
was the month and year when the Form was printed or reprinted as the case may be. It
may then be argued that that form did not emanate from the Zambian Government but
was one of the colonial left-overs, which is still to be redressed by the Zambian
Government. My answer to this is that this country has been independent for more than a
quarter of a century now, and it does not need such a long time to comb public service of

462
remnants of colonial discriminatory practices. It is my view that this form ought to have
been rectified when the Zambian Court of Arms which it carries were put on it. So there
can be no excuse for its use in its form in independent Zambia.

Going back to the facts of this case Zambia has to accord every mother of a child, single
or married, the same powers that the father enjoys. Anything less would not be justified.
The fear that the mothers may be stealing children if they are allowed to include their
young children in their passports is a very unreasonable argument because in all honesty
they are entitled to have those children where they want them to go. One cannot steal
what belongs to oneself. It should be a matter between the father and the mother of a
child to resolve as to whether to allow a child to go to country A and not to B. If they
cannot agree then one or both of them should be free to apply to court for a solution.
Such a situation would not arise in the case of single parent.

Talking about passports, I think it is opportune to say here that the holding of a passport
by a Zambian is not a privilege. It is not a privilege because he/she has a right of
movement enshrined in the Constitution: Article 24 of the Constitution. In order to
travel outside the country a Zambian Citizen needs a valid Zambian passport or travel
document. Just as they don’t get permission from the authorities to travel from one part
of the country to another, so do they not need to get permission to travel outside the
country. Since they cannot travel outside the country without passports, they are entitled
to have them, unless legal restrictions attaching to the freedom of movement imposed by
the Constitution validly apply.

During cross-examination of the petitioner, the respondent raised the question the locus
standi of the petitioner in these proceedings. Their argument appeared to have been that
since she has been issued the passport she applied for, she has no cause of action in this
matter as the aggrieved parties are her children and not herself. To this argument I have
to say that since the children in question have not yet attained maturity to be able to sue
on their own and the petitioner is a Zambian citizen she has legal standing as a petitioner
in this case. In other words she has the locus standi to sue the state or indeed any other
person when she feels that the interests of her children so dictate.

It is imperative to also say one or two things about the offices of the Registrar of Births,
Deaths and Marriages as well as the Passport Office and some of the procedures they
have put in place there. The first issue is whether or not those offices are public offices
which fall under Article 25(2) of the Constitution. My answer is that they are public
offices. They are public offices because they belong to the Zambian Civil Service i.e they
are offices of the Government of the Republic of Zambia. Article 25 Clause 3 defines the
expression ‘discriminatory’ as used in that Article. That definition does not include ‘sex’
or ‘gender’. Be that as it may it is my very considered view that the intentions of the
framers of this Constitution when they passed the Bill of Rights (PART III) of the
Constitution) could never have been to discriminate between males and females in the
way the Passport Office and its sister Department have been doing. I have no doubt in
my mind therefore that if these practices were to have been brought up to the attention of
those people who were passing this Constitution into law they would have not sanctioned

463
them. I am not sanctioning them either. Forms A and D of the Passport Office have not
been issued, on the basis of any legal provision. And even if they were so issued, that
law would be unconstitutional as it would be discriminatory between mothers and fathers
in matters relating to their children’s inclusion in the mothers’ passports or getting
passports or travel document, for no good reason than the fact that one is a female and the
other a male.

That discrimination is unacceptable and untenable legally or otherwise in these times of

enlightenment.

Further this court did not appreciate the logic in the refusal by the Passport Office to
transfer all details which were in the expired passport; in particular those relating to the
children and asking the petitioner to start all over again swearing affidavits. It is my
considered view and I hold that in a case such as the petitioner’s the practice of the
Passport Office should from now onwards be to renew a passport of a Zambian female
with all the details and/or endorsements which were on the expired one. Common sense
dictates this approach to the one that has been in use over all these years.

Thus when all is said and considered I find and hold that (1) the petitioner has been
unfairly discriminated against on the ground if sex (2) the petitioner’s children’s
particulars be endorsed in her present passport without a requirement for her to furnish
fresh affidavit or other fresh documents in respect of them, (3) a single parent family
headed by a male or female is a recognised family unit in the Zambian society (4) a
passport is part of the freedom of movement and as such it is a right for every Zambian to
have one or be endorsed in one unless there is a valid legal excuse barring such
possession or endorsement; and (5) A mother of a child does not need to get the consent
of the father to have her child/ren included in her passport or for him/her or them to be
eligible for obtaining passports or travel documents. Either parent has the in alienable
right to be a recommender, in whatever form the recommendation is required to be made,
for the child or children. This applies to birth certificates and passports in this country as
they do to other things.

I also award the costs of this action to the petitioner!

464
CUTHBERT MAMBWE NYIRONGO v. THE ATTORNEY-GENERAL (1990 -
1992) Z.R. 82 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND SAKALA, JJ.S.
8TH OCTOBER AND 26TH NOVEMBER,1991
(S.C.Z. JUDGMENT NO. 10 OF 1991)

Flynote

Immigration - Passport - Right to - Citizens have a right to issue of passport.

p83

Headnote

The right of a Zambian citizen to enter Zambia pre-supposes a right for such a citizen to
have left Zambia in the first place. A Zambian citizen has the right to the issue of a
passport, subject to the restrictions referred to in the Constitution of Zambia.

Case referred to:

(1) Kent v Dulles 357 U.S. 116 (1958).

For the appellant: P.N. Kasoma, Kasoma and Lumina.

For the respondent: J.M. Mwanachongo, Principal State Advocate.

465
 5

Judgment

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

This is an appeal from a judgment of the High Court refusing to order the return of a
passport by the Government.

The facts of the case are that on 12th February, 1991 the appellant was found guilty of
possessing cannabis, and fined a sum of K7 000,00. Before the appellant was arrested in
connection with that offence the Anti-Drug Commission took possession of some of the
appellant's belongings including his passport, No. ZA 58368. After the appellant was
convicted he applied for the return of his passport but to no avail. He therefore instituted
proceedings against the Attorney-General, as representative of the Government, and filed
an affidavit in support of such proceedings setting out the facts to which we have
referred. In reply an affidavit sworn by one Louis Kalungwangwa Nyirongo was filed
averring that the Government had issued a highly classified document pertaining to the
issuance, withdrawal and cancellation of passports. The contents of the highly classified
document were matters of national security and could not be divulged and the
Government had decided to withdraw and cancel the appellant's passport.

In his judgment the learned trial judge found that it was not a right but a privilege to
possess a passport, that the issuing authority had a discretion to grant or refuse a passport,
that the passport was the property of the government, and that the appellant was a self-
confessed criminal who had abused the privilege granted to him by engaging himself in
drug trafficking which was an international crime. On these grounds the learned trial
judge refused to order the return of the passport and it is against that judgment that the
appellant now appeals.

Mr Kasoma, on behalf of the appellant, argued a number of grounds of appeal but during
the course of the hearing before this Court he contended that the issuing authority had a
discretion to refuse to issue a passport, subject to there being proper grounds for such
refusal, and that the passport remained the property of the Government. This left two
grounds to be argued, namely that it was wrong for the learned trial judge to find that it
was not a right but a privilege to possess a passport and that the discretion to withdraw a
passport was not exercised for a proper reason, in that the possession of a small quantity
of cannabis, that is 1.6 g, according to Mr Kasoma, could not amount to drug trafficking
as found by the learned trial judge.

Mr Mwanachongo, on behalf of the respondent, conceded that under art. 24 of the

Constitution there was a right of movement out of Zambia and consequently a right to the
grant of a passport subject to the limitations

466
p84

contained in the article. Mr Mwanachongo also contended that the possession of 1.6 g of
cannabis was not evidence to drug trafficking and did not justify the withdrawal of the
passport.

Article 24 of the previous Constitution of Zambia, which was in force at the time of the
withdrawal of the passport, reads (inter alia) as follows:

''24(1) No person shall be deprived of his freedom of movement, and

for the purpose of this article the said freedom means the right to move freely throughout
Zambia, the right to reside in any part of Zambia, the right to enter Zambia and immunity
from expulsion from Zambia.

(3) Nothing contained in or done under the authority of any

law shall be held to be inconsistent with or in contravention of this article to the extent
that it is shown that the law in question makes provision:

(a) for the imposition of restrictions that are reasonably

required in the interests of defence, public safety, public order, public morality or public
health or the imposition of restrictions on the acquisition or use by any person of land or
other property in Zambia, and except so far as that provision or, as the case may be, the
thing done under the authority thereof, is shown not to be reasonably justifiable in a
democratic society.''

We agree with Mr Kasoma that a right for a Zambian citizen to enter Zambia pre-
supposed a right for such citizen to have left Zambia in the first place, and consequently
such right could only be withheld or taken away on the grounds set out in clause 3(a) of
the article.

We would comment that since the coming into effect of the Constitution of Zambia Act
on 30th August, 1991 the old art. 24 has been replaced by art. 22, the beginning of which
reads as follows:

''22(1) Subject to the other provisions of this article and except in

accordance with any other written law, no citizen shall be deprived of his freedom of
movement, and for the purposes of this article freedom of movement means:

(a) the right to move freely throughout Zambia;

(b) the right to reside in any part of Zambia; and
(c) the right to leave Zambia and to return to Zambia''.

The remainder of the new article is the same as the old one, so that the same limitations
on the right of freedom of movement apply; but, had there been any doubt about the right

467
to move out of Zambia, which doubt has now been resolved by this judgment, the new
art. 22 makes the matter quite clear.

In considering whether the right to leave Zambia is equivalent to a right to the issue of a
passport we have taken note of the law in this respect in other countries. In England, as in
Zambia, there is no statutory authority governing the issue or withdrawal of passports,
and in England the position, set out in Halsbury's Laws of England (4th ed.) vol. 18 at
para. 1412, is that the Secretary of State has a discretion to accede to or refuse an
application for a passport and may revoke or impound a passport at the discretion of the
Crown. However, there appears to be no machinery for appeal or any judicial means of
review of a refusal to grant a passport in England.

In the United States of America there is no specific constitutional right to leave or enter
the country but in the case Kent v Dulles 357 U.S. 116 (1958) the Supreme Court held
that the right of travel is a part of the 'liberty' of which a citizen cannot be deprived
without the due process of

p85

law of the Fifth Amendment. In that case a citizen had applied for a passport and had
been told that he could not have one unless he swore an affidavit that he was not a
communist. He argued that his political views were immaterial and that only the question
of a valid citizenship was material. The Supreme Court, by a majority, held that the
Secretary of State did not have an unbridled discretion where, as to denial of passports,
the administrative practice under an Act of Congress, conferring on the Secretary of State
the authority to issue passports, was limited to situations involving either citizenship and
allegiance to the United States or criminal activity. There were other findings to the effect
that Acts of Congress must be intra vires the Constitution. The finding most important in
comparing the rights of citizens of Zambia was that citizens of the United States of
America were entitled to the issue of passports. The ratio decidendi for this finding was
that, as the exit and immigration laws of the United States required the production of
passports, the issue of passports was necessary to enable citizens to exercise their
constitutional right to travel.

The authorities which we have quoted, whilst not being of this Court, may be referred to
for the persuasive effect. In considering the relative merits of the English and American
authorities we particularly note that the United States, like Zambia, has a written
Constitution. We also note that there appear to be no English decisions on the right to the
issue of a passport.

Perhaps that is because, as said in para. 1412 of Halsbury, there appears to be no

machinery for appeal or judicial review of a refusal to issue a passport. In any event we
respectfully agree with the reasoning of the Court in the Kent case, that, where there is a
constitutional right to travel, there is a right to the issue of a passport.

468
We therefore hold that a Zambian citizen has a right to the issue of a passport subject
always to the restrictions referred to in art. 24(3)(1a) of the old Zambian Constitution,
which article has now been replaced by art. 22 of the present Constitution.

We now have to consider whether, in the circumstances of this case, there was a proper
reason for the issuing authority to withdraw the passport.

We have seen the record of the case relating to the appellant's conviction in the
subordinate Court. There is no reference to the weight of the cannabis found in the
appellant's possession. Instead the particulars of the charge refer to one plastic container
and eight packets of cannabis sativa (Indian hemp) valued at K2 000. In view of Mr
Kasoma's assertion that the quantity of cannabis involved was 1.6 g this Court called for
production of the items in question. The plastic container and packets referred to are very
small indeed and we had no reason to doubt Mr Kasoma's statement to the Court as to the
weight. In view of the sentence imposed in the subordinate Court and the comments of
the learned trial judge when he referred to trafficking we have no doubt the wording of
the charge led to a misunderstanding as to the amount of cannabis involved.

We are satisfied that had the exhibits been produced before the learned trial judge he
would not have considered that the quantity found in the possession of the appellant
could properly have given rise even to a suspicion of future trafficking.

p86

Article 24(3) provides that nothing contained in or done under the authority of any law
shall be held to be inconsistent with the article to have extent that it makes provision for
the imposition of restrictions for any of the reasons set out in (a) such as public morality
or public health. If, therefore, there is any such law under which a citizen may be
prevented from leaving the country and, therefore, deprived of his right to a passport,
such a law could be invoked in this case to justify the withdrawal of the appellant's
passport; provided of course such a law applied to him. No such law has been drawn to
our attention by counsel, and the only such law which could be remotely relevant is s. 23
of the Dangerous Drug (Forfeiture of Property) Act. 7 of 1989, which provides that
where the Director of Public Prosecutions intends to take certain causes of action relating
to scheduled offences he may make an order of disclosure or restraint, which order may
require a person named (inter alia) to surrender all his travel documents. The scheduled
offences referred to do not include the possession of cannabis, consequently the power to
make such an order does not apply in this case.

There is therefore no law applicable to the circumstances of this case which enables the
appellant to be deprived of his right to the issue or possession of a passport.

This appeal is allowed and we make a declaration that the appellant is entitled to the
return of his passport or a replacement thereof if his passport has been physically
cancelled.

469
Costs to the appellant in this Court and in the Court below.
Appeal allowed.

SIKOTA WINA PRINCESS NAKATINDI WINA v THE PEOPLE (1996) S.J.

(S.C.)

SUPREME COURT
NGULUBE,C.J.BWEUPE, D.C.J., SAKALA, CHIRWA AND MUZYAMBA, JJ.S.
9TH JULY AND 10TH SEPTEMBER, 1996.
S.C.Z. JUDGMENT NO. 8 OF 1996

Flynote

Criminal procedure - Re-trial - When to be ordered - Improper to order re-trial where

evidence simply inadequate.

Headnote

The appellants appealed against an order of the High Court which had allowed an appeal
by the Director of Public Prosecutions against the acquittal of the appellants by a
subordinate court on a ruling of no case to answer. The charges against the appellants
were that they had contravened s.29 and s.30(d) of Act 37 of 1993 in that they had
refused to divulge information relating to an offence under the Act. It was alleged that the
appellants had come into possession of a secret fax from the Drug Enforcement
Commission (DEC) and the latter was determined to trace the source of the leakage and

470
accordingly sought to question the appellants. When the appellants refused to supply the
information they were duly charged.

Held:

(1) That on the evidence, the DEC was not investigating an offence under the Act
but rather the leakage which had occurred: the information had to be
reasonably required in connection with a drugs-related offence as such.

(2) That a re-trial could be ordered if the first trial was flawed on a technical defect
of if there were good reasons for subjecting the accused to a second trial in the
interests of justice: where, as here, the prosecution had adduced all the
evidence it had, there would be no point to a re-trial.

Appeal allowed.

For the Appellants: Mr S.S. Zulu of Zulu and Company and Mr M F Sikatana of
Veritas chambers
For the Respondents: Mr S.K. Munthali, Principal State Advocate and Mr W Wangwor,
Principal State Advocate
___________________________________________
Judgment

NGULUBE, CJ.: delivered the judgment of the court.

This is an appeal against the order of retrial made by a High Court judge who allowed an
appeal by the Director of Public Prosecutions against the acquittal of the appellants by a
subordinate court on a ruling of no case to answer. The facts can be stated quite briefly:
On 10th December, 1993, the Drug Enforcement Commission sent a facsimile message
classified as top secret to their counterparts in the Republic of South Africa alerting them
of a possible consignment of illicit drugs arriving in Namibia through Walvis Bay and
suspected to involve the appellants, some South African based individuals and others.
The message requested the South Africans to liaise with the relevant authorities in
Namibia. Under cover of their letter dated 20th January,1994, the appellants revealed to
the Commissioner, Drug Enforcement Commission, that they were aware of the message
sent to South Africa and indeed enclosed a transcribed copy of the “top secret” fax.
Understandably, the Drug Enforcement Commission wished to learn how such a serious
leakage had occurred. After interviewing the appellants and recording warn and caution
statements, two charges were preferred under the Narcotic Drugs and Psychotropic
Substances Act, 1993 (no. 37 of 1993); the first was under s.29 and the second under
s.30(d).

Section 29 reads:

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 “29. Any person who wilfully fails or refuses to disclose
any information or produce any accounts, document or article to a drug enforcement
officer or police officer on any investigation into any offence under this Act shall be
guilty of an offence and shall be liable upon conviction to imprisonment for a term not
exceeding ten years.”

Section 30(d) reads:

“30. Any person who refuses or neglects to give any

information which may reasonably be required of him and which he has power to give;
shall be guilty of an offence and liable upon conviction to a fine of not less than five
hundred thousand Kwacha or to imprisonment for a term not exceeding twelve months or
to both.”

The first count alleged wilful refusal to disclose information to a drug enforcement
officer contrary to Section 29 and the particulars were that the first appellant “Sikota
Wina, on the 29th day of January 1994 at Lusaka District of the Lusaka Province of the
Republic of Zambia, did wilfully refuse to disclose to G. L Kalunga, a Drug Enforcement
Officer, the name of the person who typed a letter reference PERS/7 dated 20th January
1994 which letter was addressed to and handed over to the Commissioner by the said
SIKOTA WINA.”

The second count alleged a refusal to give information reasonably required by a drug
enforcement officer contrary to Section 30(d) and the particulars were that both
appellants “Sikota Wina and Princess Nakatindi Wina on the 29th day of January,1994, at
Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly
and whilst acting together, did refuse to give the name of the person who intercepted a
top secret liaison fax message from Drug Enforcement Commission Office in Lusaka to
the Commissioner, South African Narcotics Bureau, which information was reasonably
required from the said SIKOTA WINA AND PRINCESS WINA by a Drug Enforcement
Officer and which information they have power to give.”

There were seven witnesses for the prosecution and the burden of each one’s evidence
was as follows: PW1 was the officer who had prepared and caused to be sent the top
secret fax message to South Africa. He was surprised and worried to learn that his
message had been leaked to the appellants. PW2 was the typist who typed the fax
message for PW1. PW3 was the Drug Enforcement Commission stenographer who
actually sent the fax to South Africa and received acknowledgement. PW4 was a guard
at the Drug Enforcement commission who described how the appellants came on 22
January 1994 to deliver a letter to the commissioner and insisted on giving it only to the
Commissioner; he telephoned the Commissioner who came and was given the letter.
PW5 was the Commissioner who received the letter from the appellants attaching an
accurate transcript of the secret message sent to South Africa; he caused investigations to
be launched and travelled to South Africa discuss the leakage with his counterparts. PW6
was the head of the South African Narcotics Bureau. He received the top secret fax
message and requested his counterparts in Namibia to monitor the situation concerning

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the suspected consignment. He came to learn about the visit to Namibia of the appellants
and their associates. In February 1994 PW5 visited him and told him about the leakage
to the appellants. PW7 was the Senior Assistant Commissioner at the Drug Enforcement
Commission who testified that, acting on intelligence reports implicating the appellants
and others in a possible shipment of illicit drugs through Namibia, PW1 was instructed to
send a fax to the South Africans. He was shocked to learn from PW5 that the fax had
been leaked to the appellants. PW7 investigated the leakage and interviewed the staff of
the Drug Enforcement Commission who had played any role in preparing and sending the
fax. He also interviewed the appellants and recorded warn and caution statements. The
terms of the warn and caution which where identical need to be set out and warning given
to the second appellant is given here by way of example. PW7 wrote:

“You are warned that officers of the Commission are making

enquiries into circumstance surrounding the alleged interception of the Commission mail
namely a TOP SECRET LIAISON FAX MESSAGE REFERENCE NO. LF/1/22 dated
10th December, 1993 addressed to the Commissioner, SANAB, PRIVATE BAG x94,
00001 PRETORIA, REPUBLIC OF SOUTH AFRICA which was transmitted on 10th
December, 1993. It is alleged that you whilst acting jointly together with your husband
Hon Sikota Wina M.P. and other persons unknown within and outside Zambia on an
unknown dated between 10th December, 1993 and 20th January, 1994 did intercept a
TOP SECRET LIAISON FAX MESSAGE from Drug Enforcement Commission office
in Lusaka to Commissioner, South Africa Narcotics Bureau in South Africa without
lawful authority. You are therefore, in terms of section 29 and section 30(d) of the
Narcotic Drugs and Psychotropic Substances Act No. 37 of 1993 requested to disclose
the source of your information or copy of the Top Secret Liaison Fax Message which you
attached to a letter reference No. PERS 7 of 20th January,1994, which you delivered to
Mr. R. Mungole, Commissioner, Drug Enforcement Commission on the 22nd day of
January, 1994, at his office. You are further warned that you are not obliged to say
anything in answer to the allegations made against you unless you wish to do so but
whatever you say will be taken down in writing and may be given in evidence. You are
also warned that I may ask you questions which you are not obliged to answer but should
you choose to answer them such questions and answers will be taken down in writing and
may be given in evidence.”

We quote the warn and caution because there was an issue raised with which we will deal
later concerning the propriety of requiring a suspect to take when he has been advised
that he is not obliged to do so if he so elects. In relations to count one, the first appellant
declined to say who had typed the letter they gave to PW5. On the second count, the
evidence of PW7 was that the appellants did not actually refuse to tell him who had
intercepted the fax but that they said they did not know. He said:

“They did not refuse to answer the question. They did so in

the negative. They said they did not know. They did not refuse. They did not give me
my intended answer.”

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Quite apart from the submissions and what we will say later, the desire to obtain a
particular answer underlines the wisdom of the rule against the admission of
confessionary evidence which is not shown to have been given freely and voluntarily.
Fortunately, no question of involuntariness arose in this case.

The learned trial magistrate heard defence submissions of no case to answer, together
with the submissions of the prosecution. She upheld the submissions that the charges
were not cognisable and arrest without warrant had been unlawful; that the facts in
support of the first count did not establish the relevant ingredients required to be proved
and that an investigation into the circumstances leading to the leakage of the fax was not
an investigation into any offence prescribed under any section of the Act; that there was
no wilful refusal on the second count when the appellants said they did not know who
had sent them the copy of the fax and that it was simply a question of PW7 not liking
their answer and looking for his “intended answer”; and that the reference to “any
person” in S.30(d) did not apply to an accused person who is responding to a warn and
caution. The learned trial magistrate also made some remarks doubting the
constitutionality of the charges. However, she acknowledged that at her level she was not
empowered to pronounce upon the constitutionality of laws. The appellants were
acquitted and the Director of Public Prosecutions appealed.

The appeal by the state was based on several grounds. One ground alleged error of law in
addressing the issue of constitutionality and the learned appellate judge below duly
upheld the ground, holding that a magistrate could not decide on the constitutionality of
the sections under which the appellants were charged. In fairness to the magistrate, we
must immediately observe that she did not in fact pronounce upon the constitutionality of
the sections; her remarks were clearly intended to be obiter and gratuitous. Another
ground alleged a misdirection in the remarks made by the magistrate that she found the
evidence adduced to have been relevant to the charges. The third ground alleged error in
the finding that the arrest without warrant was unlawful and void and that the charges
were defective. The fourth ground was in fact no ground at all, it simply alleging that the
ruling of no case to answer was against the weight of evidence.

The learned appellate High Court judge dwelt at length on the question of voluntariness
and the admissibility of warn and caution statements. We consider such exercise to have
been unnecessary in this case where there was no objection to the admission of the warn
and caution statements. The point made by the appellants, which Mr. Sikatana repeated
before us, related to the presumption of innocence and the rule against self-crimination.
What was under attack was the law which compels a suspect to furnish information to the
investigations.

In this appeal, Mr. Zulu argued the factual grounds. It was submitted that the learned
appellant judge was wrong to order a retrial when the prosecution evidence had failed to
establish the necessary ingredients of the offences. It was pointed out that, on the
evidence, the D.E.C. was investigating, not any offence under the Act, but the leakage
which had occurred; that there had been no wilful refusal to disclose the identity of the
person who sent the copy of the fax; and that the information requested had to be

474
reasonably required in connection with investiogations into a drugs-related offence as
such. These were cogent arguments which were fortified by the form and content of the
warning and caution given by the investigating officer. Mr. Wangwor's spirited attempt
to relate the charges to the investigations into the suspected consignment passing through
Namibia cannot be upheld. If what he argued had been the case, it would have been the
easiest think for PW7 to have warned that he was investigating that particular allegation
and to have warned that wilful refusal to furnish information was itself an offence. This,
he did not do. It would be unthinkable in any, let alone a serious criminal case to assume
against an accused that his mind had been accurately, adequately and suitably directed to
the charge being investigated if he is told that the officer is investigating a leakage of
information but the court should assume he was aware the investigation related to the
substantive drugs-related case which was arguably compromised by the leakage. Clarity
and precision are required in a criminal case where the accused is entitled, under the
constitution, to be informed in a language that he understands and in detail of “the nature
of the offence charged” (see Article 18(2)(b) of the Constitution).

On fact and on merit, therefore, it seems to us that the case against the appellants had
collapsed of its own inanition. The question of retrial was considered by this court in
Nachitumbi and Another v The People (1975) ZR 285. A retrial can be considered if the
first was flawed on a technical defect or if there are good reasons for subjecting the
accused to a second trial in the interests of justice. Where, as here, the prosecution has
adduced all the evidence it had, what would be the point of a retrial? Indeed it would be
improper to order a retrial when the evidence was simply inadequate and it would be a
case of giving the prosecution a second bite at the cherry. In our considered view, to
have been sufficient for a retrial the point of law or mixed law and fact raised by the
Director of Public Prosecutions in this case would have required to satisfy the court that,
on the evidence as it stood, the appellants were as a matter of law guilty of the charges
against them. Messrs Munthali and Wangwor who appeared for the state were not
prepared to make such a submission. A retrial would, accordingly, serve no useful
purpose and it would not be in the interests of justice to subject the appellants to a second
trial.

Mr Sikatana argued the grounds of appeal raising legal and constitutional matters. In the
view that we take and especially in light of our conclusion on the evidence and merits, it
is only necessary to dispel the notion that there is anything unconstitutional or unlawful
about a law which requires persons to furnish information, such as the sections under
discussion. In this regard, we have visited chapter 20 of the 14th Edition of Phipson on
Evidence where the learned authors dealt with the rule against self-incrimination. They
have observed that there are exceptions to the rule under certain statutes. Towards the
end of paragraph 20-51, they write:

“While the Exchange Control Act 1947 was in force, the

Treasury had power in the course of their general investigations to compel people to
furnish information, and it was held (in D.P.P. v Ellis (1973) 1WLR 722) that this power
overrode the privilege against self-incrimination, but also that the privilege revived once

475
such a person was charged with an offence and cautioned.” (so held A. v H.M.
TREASURY (1979) 1 W.L.R. 1056).

In our view, such a dual principle provides the answer to the submissions here. We can
also draw an analogy from, say, the drunken driving cases where a suspect can be
required to provide a specimen and wilful refusal or failure to provide one is itself an
offence. The statute in that case has clearly overridden the privilege against self-
crimination. Mr. Sikatana contended that this type of arrangement must be
unconstitutional, without specifying which provision of the constitution was infringed.
We cannot speculate.

Before concluding our judgment in this appeal we wish to make certain pertinent
observations on the facts not in dispute. The facts not in dispute as earlier briefly stated
are that on 10th December, 1993, the Drug Enforcement Commission sent a facsimile
message classified as Top Secret to their counterparts in the Republic of South Africa
alerting them of a possible consignment of illicit drugs arriving in Namibia through
Walvis Bay and suspected to involve the appellants, some South African based
individuals and others.

It was common knowledge that by letter dated 20th January, 1994, the appellants, in
person, revealed to the Commissioner of the Drug Enforcement Commission that they
were aware of a message sent to South Africa and indeed enclosed a transcribed copy of
the “Top Secret Fax”. We are satisfied that the Top Secret Message was not supposed to
be in possession of the appellants for very obvious reasons.

The facts in our view established a very serious leakage in the work of the Drug
Enforcement Commission in their operations with their South African counterparts. The
facts further revealed that the investigations had been compromised. In addition the facts
of the case disclosed a very alarming situation where it is obvious that an important
investigative wing or wings such as the Drug Enforcement Commission or their South
African counterparts have been infiltrated by people with interests in illicit drug
trafficking. In these circumstances the Drug Enforcement Commission was in our view
duty bound to investigate this serious leakage. They were therefore entitled to interview
the two appellants.

While the investigations of the leakage might not have been of a drugs related offence per
se and that on that ground alone this appeal must succeed, we take note that the
information that leaked and that was in the possession of the appellants was of a drugs-
related nature. It was therefore too much of a coincidence that the two appellants should
have been in possession of a drugs-related Top Secret document of which they were also
the subject of the investigations. What all this finally discloses is that the Drug
Enforcement Commission or their South African counterparts have been infiltrated by a
mole. If this is the case then their work of fighting illicit drug trafficking will become
more difficult. For our part, we wish to express our deep disapproval of any body
hampering investigations intended to curb illicit drug trafficking. In this regard we urge

476
the public to give every co-operation to the Drug Enforcement Commission in their fight
against illicit drug trafficking.

These observations however do not change the outcome of this appeal which has
succeeded on fact and merits.

We are satisfied that the learned appellate judge should not have ordered a retrial. The
appeal is allowed and the order of retrial quashed.

Appeal allowed.

FRED MMEMBE , BRIGHT MWAPE v THE PEOPLE AND FRED MMEMBE

MASAUTSO PHIRI GOLIATH MUNGONGE v THE PEOPLE (1996) S.J.

SUPREME COURT
NGULUBE, CJ., SAKALA AND CHAILA, JJ.S.
23RD JANUARY AND11TH APRIL ,1996.
S.C.Z. JUDGMENT NO. 4 OF 1996

Flynote

Criminal defamation of the President - Whether section 69 of Constitutional law - Human

rights - Freedom of expression - Whether offence of defamation of President under s 69
of Penal Code infringes right to freedom of expression in art.20 of Constitution.
Constitutional law - Human rights - Right not to be discriminated against - Whether
offence of defamation of President under s.69 of Penal Code infringes against right
against discrimination in s 23 of Constitution.
Criminal law - Defamation of President under s.69 of Penal Code - Offence not
amounting to infringement of rights to freedom of expression and not discriminatory.

477
Headnote

The appellants had been charged in a magistrate's court with contraventions of s 69 of the
Penal Code in that they had allegedly defamed the President. They requested the
magistrate to refer the matter to the High Court in order to determine the constitutionality
of s.69 of cap.146. The High Court heard argument on the E issues whether s 69
contravened arts 20 and 23 of the Constitution and and ruled that they did not. On appeal
it was submitted on behalf of the appellants that the criminal provision offended against
the right to freedom of expression in art 20 and was discriminatory and thus in breach of
s.23 of the Constitution.

Held:

(1) That no one could seriously dispute that side by side with the freedom of speech
was the equally F very important public interest in the maintenance of the
public character of public men for the proper conduct of public affairs which
requires that they be protected from destructive attacks upon their honour and
character. When the public person was the head of state the public interest was
even more self-evident.

(2) There was nothing in art 20 which immunised defamation: a law met the test of
being reasonably required if it had as its aim at least one of the interests or
purposes listed in art 20(3).

(3) As to the contention that s.69 did not amount to 'law' as it was overbroad and
vague, that s 69 was neither overbroad nor vague. Defamation was a well-
known subject - even the criminal type of defamation and when it is appropriate
to prosecute is well established under English principles of law. The section
was a valid law and the appeal could not be upheld on this basis.

(4) Section 69 was furthermore reasonably required to forestall a breakdown of

public order and there was accordingly a proximate relationship between the
two as required by the Constitution.

(5) As to whether s 69 was reasonably justifiable in a democratic society, the Court

was of the opinion that it would not be authority for the non-criminalisation of
defamation of te President just because there may be other measures to
couteract attacks to him. There was no pervasive threat inherent in s 69 which
endangered the freedom of expression.

For the Appellant: Messrs. J. Sangwa and R. Simeza - Simeza Sangwa & Co.
For the Respondent: Mr A.G. Kinariwala, Principal State Advocate
_________________________________________
Judgment

478
NGULUBE, CJ.: delivered the judgment of the court.

There are two appeals which have been heard together. In one case Bright Mwape and
Fred Mmembe are facing a charge of defamation of the President, contrary to Section 69
of the penal Code. They requested the learned trial magistrate to refer the case to the
High Court under Article 28(2)(a) of the constitution for the senior court to determine the
constitutionality of Section 69 of Cap. 146 Chitengi, J. heard arguments, and submissions
( to which I will be referring) and in a well-researched and well-reasoned judgment, he
held to the effect that Section 69 did not contravene Articles 20 and 23 of the constitution
as contended by the accused so as to be caught by the provisions of Article 1(2) of the
constitution which nullify any law found to be inconsistent with the constitution.

In the other case, Fred Mmembe, Masautso Phiri and Goliath Mungonge are facing a
variety of charges one of which is again defamation of the President contrary to Section
69 of the Penal Code. The learned judge (Mrs. Mambilima,J) summarily adopted the
ruling of Chitengi, J, in the other case and sent the case back to the Subordinate Court for
the trial to proceed. Apparently, there was neither a proper hearing nor a decision on the
merits and such a procedure appears not to be supported by the law or practice.
However, since the real issue relates to the constitutionality of Section 69 of the Penal
Code and since this has been the basis of the appeal, I say no more about the learned
judge's summary disposal of the case.

The real issue is common to both cases.

Section 69 of the penal code was introduced into the statute by the Penal Code
(Amendment) Act, No. 6 of 1965, which was assented to on 11th January 1965, just a
few months after independence. The Section reads....

"S.69. Any person who, with intent to bring the President into hatred, ridicule or
contempt, publishes any defamatory or insulting matter, whether by writing print, word
of mouth or in any other manner, is guilty of an offence and is liable on conviction to
imprisonment for a period not exceeding three years."

When the constitutional reference came up before Chitengi, J, it was contended that
Section 69 is in conflict with Articles 20 and 23 of the constitution. The relevant parts of
Article 20 for the purposes of this case read:

"20. (1) Except with his own consent, no person shall be

hindered in the enjoyment of his freedom of expression that is to say.............freedom to
impart and communicate ideas and information without interference. Whether the
communication be to the public generally or to any person or class of
persons,.....................
(2) (N/A)
(3) Nothing contained in or done under the authority of
any law shall be held to be inconsistent with or in contravention of this Article to the
extent that it is shown that the law in question makes provision

479
 (a) that is reasonably required in the interests of
defence, Public safety, public order,morality, or public health; or
(b) that is reasonably required for the purpose of
protecting the reputations, rights and freedoms of other persons..............; or
(c) (N/A).....................................
and except so far as that provision or the
thing done under the authority thereof as the may be is shown not to be reasonably
justifiable in a democratic society".

When interpreting constitutional provisions regarding the fundamental rights and

freedoms for the purpose of ascertaining the validity of a subordinate law, I find it
absolutely necessary to bear in mind the injunction in Article 11 that, far from being
absolute the rights and freedoms are subject to limitations " designed to ensure that the
enjoyment of the said rights and freedoms by any individual does not prejudice the rights
and freedoms of others or the public interest". This much was common ground. I also
bear in mind the major object of interpretation is the ascertainment of the intention
expressed by the legislature. This indeed is the fundamental rule of interpretation of all
enactments to which all other rules are subordinate . Since the court's duty is to find out
the expressed intention of the legislature and to construe enactments according to such
intent, it follows, as a full bench of this court put it in Samual Miyanda v Raymond
Handahu S.C.Z. Judgment No. 6 of 1994, that:

"When the language is plain and there is nothing to suggest

that any words are used in a technical sense or that the context requires a departure from
the fundamental rule, there would be no occasion to depart from the ordinary and literal
meaning and it would be inadmissible to read into the terms anything else on grounds
such as of policy, expediency, justice or political exigency, motive of the framers, and the
like."

As the quotation from Article 20 shows, the legislature qualified the right to freedom of
expression by a number of exceptions if shown to be reasonably required for any one or
more of the purposes enumerated. The only exception to this is if "that provision", that is
to say, if the challenged law itself or, in the alternative, "the thing done under the
authority thereof" is shown not be reasonably justifiable in a democratic society. The
ordinary and literal meaning of the reference to "that provision" and to the thing done
under the authority thereof" plainly indicates that two situations of possible
unconstitutionality should be distinguished: The first is where the legislation or the law
is itself clearly in excess of the constitution. The second is where the legislation or the
law is clear and within the constitution but the action taken under such law exceeds what
is permitted by the Constitution. In the first situation, it is the impugned law itself which
would be liable to be struck down. In the second situation, it would be the action taken
and not be legislation which should be held to be unconstitutional. In my considered
view, the first kind of situation is what lends itself to the type of purely technical and
legalistic litigation involved in the instant case while the second situation requires fuller

480
investigation into the facts and circumstances such as one might find at a trial or upon
some evidence being tendered.

I have taken the trouble to highlight the distinction between the two situations because,
from the way the arguments proceeded both below and here this distinction was blurred.
For example, counsel for the accused opened his submissions below by contending quite
boldly that truth would not be a defence to a charge under Section 69. This is startling
and highly debatable. In any case, it seems to me that the range and scope of the possible
defences can not be a factor to be taken into account at this stage where the section is
being considered simply in absolute terms as it stands viz-a-viz the Articles of the
constitution relied upon. In other words, is Section 69 clearly in excess of the
Constitution or not?

At the hearing below, there was an issue whether the accused persons had shown on a
balance that their enjoyment of the freedom of expression was, because of the
prosecution under S.69, being or likely to be hindered. The learned trial judge found for
the accused and in this he followed the decision of the High Court (Blagden,C.J) in
Kachasu v Attorney-General (1967 Z.R. 145. The learned Chief Justice in that case drew
inspiration and support from thirteen cases all decided in a variety of foreign courts and
held, among other things, to the effect that even slight degree of hindrance, not
necessarily amounting to prevention, sufficed to discharge an aggrieved person's burden
of showing a contravention of the constitutional freedoms. I have no reason to disagree
with Blagden, C.J. The exceptions in article 20(3) refer to the law in question making
provision that is reasonably required for one or more of the objects listed. A question
was raised below and answered against the accused whether Section 69 was reasonably
required for any of the listed objects. In this appeal, it was argued that the learned judge
was wrong to find that the Section was reasonably required for the sake of public order.
It was argued that, according to the speeches in parliament as reflected in the relevant
Hansard, the provision was more concerned with the dignity of the state than with Public
Order. Counsel for the State invited us to consider as significant the fact that Section 69
was inserted in the Chapter of the Penal Code headed " Offences against Public Order."

I have considered the submission and let me state also that I have no objections to
looking at the Hansard especially if there is some doubt on the backdrop or on the face of
the language of an enactment. However, in this instant case, I can see no justification for
resorting to the Hansard when answering the question whether Section 69 is within or
without the permitted exceptions under Article 20(3). This is because I find the language
of Section 69 such that the fundamental rule of interpretation earlier adumbrated is
applicable. However, to say that the learned trial judge simply found that Section 69 was
reasonably required for the sake of public order does not do justice to the very elaborate
and lengthy treatment of the subject in the judgment below. The judge in fact considered
the importance of the freedom of expression; he considered the chilling effect of the law
of defamation and similar laws on the freedom; he noted how defamation was a crime as
well as an actionable wrong and the historical differences between the crime and the civil
wrong citing authorities that supported the need to punish in a more public fashion the
criminal type of libel where it is in the public interest that criminal proceedings should be

481
brought. The learned judge went on to observe that the accused appeared quite prepared
to suffer hindrance of their freedom of expression by civil libel actions but were averse to
criminal prosecutions. The learned trial judge then went on to consider who bore the
burden of proof under the exceptions and in the process criticised, quite properly in my
view, the so-called presumption of constitutionality as applied in Kachasu in favour of
the more acceptable approach of Magnus, J. in Patel v Attorney General (1968)ZR 99.

For the record, I would like to associate myself with the approach of the judge below and
I add my own observation: Article 20(3) envisages two scenarios being "shown" to the
court, that is, case one where it is shown - no doubt by the one relying upon it such as the
state-- that the law in question makes provision "that is reasonably required" (with a sub
case where for instance an aggrieved citizen wished to show on balance that it is not
reasonably required) and case two where the law or the thing done under it “is shown not
to be reasonably justifiable in a democratic society" -- no doubt shown on a balance by
for example an aggrieved citizen. After dealing with the burden of proof, the learned
judge below proceeded to consider the objective test to be applied in determining the
alleged inconsistency of the law with the constitution and also considered the real effect
and impact of that law on the fundamental right in question: he discounted any arguments
based on the availability or otherwise of defences; and he dealt with the submissions that
it was wrong and unnecessary to have a law to protect specially the President by
prosecutions for defamation. Speaking for myself, the judge below was right to reject
arguments which sought to consign the President into the general rank and file of the
citizenry. He was not in error when he considered that Section 69 was reasonably
required, in effect, to forestall a possible unpeaceful reaction from the citizens and
supporters and to protect the reputation of the first citizen. I do not consider that there
can be any who would seriously dispute that side by side with the freedom of speech is
the equally very "important public interest in the maintenance of the public character of
public men for the proper conduct of public affairs which requires that they be protected
from destructive attacks upon their honour and character." See my judgment in Sata v
Post Newspapers Ltd and Another (1992/HP/1395 and 1804 and 1993/HP/821 -
Unreported). When the public person is also the Head of State, the public interest is even
more self-evident.

The truth of the matter is that there is nothing in Article 20 when immunises defamation.
In my considered opinion, a law meets the test of being reasonably required if it has as its
aim at least one of the interests or purposes listed in Article 20(3). It is also reasonably
required upon the test of proportionality when, as the Court of Appeal of Tanzania put
it---

"Secondly, the limitation imposed by such law must be no

more than reasonably necessary to achieve the legitimate object. This is what is also
known as the principle of proportionality"- see Pumbun v Attorney-General (1993) 2
L.R.C. 317.

The next argument advanced on appeal was to the effect that the learned judge was
wrong when he failed to consider whether Section 69 was in fact a "law" within the

482
contemplation of Article 20. Criticism of the judge appears to be quite unfounded
because this ground appears not to have been canvassed at the hearing below and was
only taken up for the first time before this court. There are indeed some authorities
which have suggested that the constitutional or similar exceptions to fundamental rights
apply only in relation to restrictions "contained in or done under the authority of any
law". Accordingly, it is sometimes necessary for the court to determine whether the
impugned legislation conforms to this constitutional requirement before the court
embarks upon a consideration of whether the restriction is "reasonably required" or
shown not to be “reasonably justifiable in a democratic society." In the Pumbun case, the
Tanzanian Court of Appeal suggested that one of the essential requirements for the
validity of the clawback provisions was that “............... such a law must be lawful in the
sense that it is not arbitrary." The European Court of Human Rights considered the
meaning of the word “law" in the context of permissible restrictions to basic rights in
Silver and Others v The United Kingdom, judgment judgment of 25 March 1983, series
A. number 61. They expressed the view at page 33 that a norm:

"........... cannot be regarded as "law" unless it is formulated

with sufficient precision to enable the citizen to regulate his conduct: he must be able - if
need be with appropriate advice - to foresee, to a degree that is reasonable in the
circumstances, the consequences which a given action may entail".

Another case of the European Court which can be mentioned is the Malone CASE,
Judgment of 2nd August 1984 series A number which suggested that the "law" must be
foreseeable and compatible with the rule of law. The court suggested that, although it is
impossible to have absolute precision in drafting a law, it should nevertheless, "indicate
the scope ... and the manner of its exercise with sufficient clarity."

These are basically the arguments which learned counsel for the accused advanced,
although he cited the case of TOLSTOY decided by the European Court but whose
transcript I have myself not been shown. It was argued that Section 69 of the Penal Code
was not a valid law because it is overbroad and vague; it does not say what is defamatory
and what is insulting; and that it can catch and criminalise even legitimate expression.
The offence of criminal libel elaborately dealt with under Sections 191 to 198 of the
Penal Code was quoted as an example of the type of clarity required. Curiously enough ,
no constitutional attack is made of this other criminal libel. I do not myself subscribe to
the view that S.69 is over-broad or vague. The general rule of interpretation of the Penal
Code is that it "shall be interpreted in accordance with the principles of legal
interpretation obtaining in England." (Section 3). The fundamental rule to which I had
earlier made reference applies to S.69. Defamation is a well-known subject; even the
criminal type of defamation and when it is appropriate to prosecute is well established
under the English principles of law. As the learned judge below correctly pointed out,
there is a big difference between legitimate criticism or other legitimate expression and
the type of expression encompassed by Section 69. The section under discussion is a
valid law and I would myself not uphold the ground of appeal in this respect.

483
There was a submission alleging a misdirection in the holding that S.69 was reasonably
required to forestall a breakdown of public order; the argument being that there is no
rational and proximate relationship between Section 69 and public order. I consider this
submission to have been expletive and for the reasons earlier stated when considering
whether the section is "reasonably required", I would dismiss this argument.

The last issue raised under the first ground of appeal was whether Section 69 was
reasonably justifiable in a democratic society. It was argued that the impact of Section 69
was so vast that, in the language of the Zimbabwean case of Re MUNHUMESO (1994)
1LRC 282, it arbitrarily or excessively took away the freedom of expression. The learned
trial judge dealt with this aspect quite extensively since the right of expression is critical
in a democracy. I have looked at the arguments below and here on the possible impact of
S.69 on the fundamental freedom of expression. It seems to me that a general point can
be made about the right of criticism and that it can only be up to the evidence heard in a
trial if there was in fact legitimate criticism or unwarranted falsehoods and defamatory
allegations or vulgar mere insults not containing anything useful to the free flow of ideas
and information. As I observed in the Sata v Post Newspapers case, freedom of speech
and press can not be synonymous with freedom to defame. I have also considered the
authorities which were relied upon below, including the case of Castell v Spain,
judgment of 23rd April, 1992, series A number upon 236. I would myself not regard it as
authority for the non-criminalisation of defamation of the President just because there
may be other measures to counteract attacks on him. Mr Castells, an opposition
politician representing a Basque separatist coalition in the senate, published in a weekly
magazine an article in which, among other things, he accused the government of failing
to investigate murders and attacks by armed groups against Basque citizens and accused
government of actually supporting and instigating the attacks. He was convicted by the
Spanish Courts for insulting the government and sentenced. The European Court made it
clear that government are required to tolerate an even greater degree of criticism than the
politicians. They were talking about an impersonal attack on democratically elected
government and suggested that the "dominant position which the government occupies
makes it necessary for it to display restraint in resorting to criminal proceedings,
particularly where other means are available for replying to the unjustified attacks and
criticisms of its adversaries or the media." The court proposed to narrow down
drastically the circumstances in which a government may prohibit criticism of itself to the
occasions when it is necessary to protect public order and when the accusations are
"devoid of foundation or formulated in bad faith." (See paragraph 46 of the judgment).
In the event, the court ruled that the government of Spain had violated Article 10 of the
European Convention (regarding freedom of expression) on the narrow ground that Mr.
Castells was prevented at his trial from offering evidence as to the truth of his allegations.
The decision was on the facts and merits; the European Court did not declare the criminal
offence as altogether violative of Article 10 of the European Convention but simply
suggested to narrow down the circumstances warranting a prosecution. The case is not
authority for invalidating the criminal offence itself. Similarly, the case of New York
Times v sullivan 376 us 254; 11L.ED.2d 686 which was quoted below did not suggest or
offer complete immunity from suit but simply imposed fetters on a public plaintiff. It is

484
not authority even by way of analogy for immunizing all attacks on a Head of State nor
for invalidating a section creating a criminal offence.

Mr Sangwa criticised the learned trial judge for describing ours as a young and fragile
democracy instead of simply looking at what would be reasonably justifiable in any
democracy. He relied on Patel v Attorney-General which was a decision of the High
Court before the now late Samuel Woolf Magnus, J, who went on to sit in this court
before retiring via the county courts in England. The decision in Patel did not suggest
that the court should not have any regard to our kind of democracy. The learned judge
expressed himself thus at pages 128-9:

"... I am not for a moment suggesting that Zambia is not a

democratic society, but for the purpose of the constitution, I think it is necessary,
to adopt the objective test of what is reasonably justifiable, not in a particular democratic
society, but in any democratic society. I accept the argument that some distinction should
be made between a developed society and one which is still developing, but I think one
must be able to say that there are certain minima which must be found in any society,
developed or otherwise, below which it cannot go and still be entitled to be considered as
a democratic society". (Underlining supplied).

I had occasion in Sata v Post Newspapers to comment generally upon recourse to

international norms and the decisions of the courts in various jurisdictions. I said:

"What is certain is that it does not follow that because there

are these similar provisions in international instruments or domestic laws, the courts in
the various jurisdictions can have or have had uniform approach. For one thing, as the
examples I have quoted show, the right to free expression and free speech is qualified by
exceptions, in some cases more heavily than in others. For another, we are at different
stages of development and democratisation and the courts in each country must surely
have regard to the social values applicable in their own milieu."

Quite clearly, it was not a misdirection to have regard to the conditions and the level of
democracy in Zambia when testing whether the particular section of the Penal Code was
reasonably justifiable in a democratic society. Unlike a provision recently stuck down
by the majority decision in Mulundika and Others, Appeal No. 95 of 1995, there is in this
instant case no pervasive threat inherent in Section 69 which endangers the freedom of
expression. The Mulundika case also underlined, in the majority decision, the principle
that there are minimum attributes in any democracy.

I would myself dismiss the first ground of appeal. The second ground alleged that
Section 69 contravened Article 23 which reads in the relevant parts:

"Article 23 (1) Subject to clauses (4,(5) and (7), no law shall

make any provision that is discriminatory either of itself or in its effect.
...

485
 (3) In this Article the expression "discriminatory" means,
affording different treatment to different persons attributable, wholly or mainly to their
respective descriptions by race, tribe, sex, place of origin, marital status, political
opinions colour or creed whereby persons of one such description are subjected to
disabilities or restrictions to which persons of another such description are not made
subject or are accorded privileges or advantages which are not accorded to persons of
another such description."

The learned judge held that the section punishing defamation of the President was not
discriminatory on any of the grounds listed in the Article which were held to be
exhaustive. The argument by Mr. Simeza was that Section 69 conferred priviledges on
the ground of the President's political opinions when all should be equal before the law.
This was an attempt- which the learned judge below rejected-- to do not so subtle
violence to the language of the Article. How can favourable treatment attributable solely
to the office of President be described as attributable wholly or mainly to his political
opinions? It was also an attempt to reduce to the common ranks the central executive
authority and first citizen of the country. The election of any person to the office of
President, I would have thought to be self-evident, has legal and constitutional
consequences, quite apart from any other result. The constitution itself ordains that the
become Head of State and of Government; that the executive power of the state vest in
him and that he can be endowed with the various matters, powers and functions described
in the constitution. I do not see how it can be argued that the President should stand
before the law equally with the rest of us when, for example, Article 43 grants him
immunity from civil or criminal suit while he occupies that high office. If the
constitution itself makes the president not equal to everyone else, how can the accused’s
arguments be maintainable? The second ground of appeal must fail if its own inanition.

For the reason I have given I would dismiss the appeals and order that the trials do
proceed before the Subordinate Courts. Because an important constitutional challenge to
Section 69 of the Penal Code has been argued in this court for the first time and the
matter is of general importance, I would make no order as to costs.

Appeals Dismissed.

486
SEBASTIAN SAIZI ZULU v TIMES NEWSPAPERS (ZAMBIA) LIMITED (1985)
Z.R. 30 (S.C.)

SUPREME COURT
NGULUBE, D.C.J., GARDNER AND MUWO, JJ.S.
13TH FEBRUARY AND 15TH MARCH, 1985
(S.C.Z. JUDGMENT NO 7 OF 1985)

Flynote

Tort - Libel - Fair comment - Contest - Reference in Hansard - Reference to other

sources.
Tort - Libel - Meaning of words - Function of court - Interpretation by witnesses -
Irrelevance of.

Headnote

487
The defendant, the proprietor of a newspaper, publisher alleged defamatory comments
about leaders, referring to them as "hangers-on and lacking dedication to the humanistic
cause" and that others have got away with the TAW scandal". The trial judge upheld the
defence that the words were neither understood to refer or capable of referring to the
plaintiff and in respect of the second remark upheld a defence of fair comment. The
plaintiff appealed.

Held:

(i) Where words are alleged to be defamatory in their ordinary meaning it is

neither for the plaintiff nor for any witness to give evidence as to or to interpret
the meaning of the allegedly defamatory statement. This is the proper
prerogative and function of the court;

(ii) The alleged scandal having been discussed in Parliament could therefore be
said to have originated therefrom and newspaper articles which reported or
purported to report the scandal as discussed in Parliament can properly be
referred to for the purpose of ascertaining the content of the statement under
complaint.

Cases referred to:

(1) Zambia Publishing Co. Ltd. v Kapwepwe (1974) Z.R. 294.
(2) Zambia Publishing Co Ltd v Joes Haulage (Z) Ltd., S.C.Z.
Judgment No.2 of 1984 (unreported).
(3) Kemley v Foot [1952 ] All E.R. 501

For the appellant: In person.

For the respondent: J.Jearey of D.H. Kemp and Company.
__________________________________________
Judgment

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

For convenience we will refer to the appellant as the plaintiff and to the respondent as the
defendant which is what they were in the action. The plaintiff has appealed again the
dismissal by the High Court of a libel action which he had brought against the defendant.

p31

The action arose out of lengthy article entitled "Wanted: Younger leadership" published
by the Defendant in its Sunday Times of Zambia newspaper of 2nd May, 1982, the
relevant passage from which reads:

"And so President Kaunda has turned 58, two years short of

60. He is not getting any younger. And with this being recognised it becomes important

488
to take a critical look at what supporting role other leaders are giving him in running the
affairs of State.

Are most of the leaders in the Party and its Government as

committed as President Kaunda is? On the available evidence the question should be
answered in the negative. A good number of the leaders are hangers-on and lack depth
and dedication to the humanist cause. The upshot of this all is that quite number of them
have been involved in scandals. Or as one cynic put it: 'In Zambia today you are no leader
unless you survived sordid scandal.' Examples abound. There are at present in leadership
men whose hands have been soiled by the Kanyama funds murk. And of course others
have got away with the TAW scandal. The list is long."

The two sentences complained of as being defamatory of and referable to the plaintiff
were:

(a) "A good number of leaders are hangers-on and lack

depth and dediction to the humanist cause." and
(b) "And of course others have got away with the TAW
scandal."

In relation to (a), the learned trim judge upheld the defence that the words were neither
understood to refer no capable of referring to the plaintiff; and in relation to (b), he
upheld the defence of fair comment made without malice upon a matter of public interest.
We will deal with each of the two statements in turn.

The plaintiff, who has argued his own appeal, has asked us to reverse the findings made
by the Court quo and to enter judgment in his favour. With regard to the statement about
"hangers-on" and so forth, it is the plaintiff submission that, as the Defendant chose to
illustrate the type of leader therein criticised by citing the TAW scandal (with which the
plaintiff was identified), he was referred to and included in that statement and that,
therefore, it was immaterial that the main thrust of the article was directed to the then
"present" leadership.
That the plaintiff was a national leader in the past, as a Permanent Secretary and Solicitor
- General, was not in dispute. But his contention in this regard is that, having identified
him in the context in question, whether mistakenly or not, the statement became
deferrable to him. On behalf of the defendant, Mr Jearey argues that the burden of the
article referred to present and not past leaders and that, accordingly, the ordinary reader
would be unlikely to assume that the "hangers-on" included past leaders. He submits that
the reference to the TAW scandal would have been understood to include several other
individuals who

p32

are still leaders and who are mentioned in the National Assembly debates and not only
the plaintiff, Mr Wood and Mr Siwo as contended by the Plaintiff.

489
The learned trial judge held that, since the word "leader" is defined in the Leadership
Code, and since the plaintiff was not, at the time of the publication, caught by such
definition, the plaintiff was not, affected by, or included in, any discussion in the article
directed at the then ''present" leadership. In the view that we take it is unnecessary for us
to delve into the definition of leader since, in our considered opinion, that is not the
issue in this case. The issue, as we see it' is whether or not, in the context in which it
appears, the statement about "hangers-on" was capable of being understood to refer to the
plaintiff. If it can be so understood, it would be wholly unnecessary for us to discuss
whether or not the readers must have known that the plaintiff was no longer a leader; or,
for that matter, whether or not the Leadership Code or any other enactment has given a
definition which included or excluded a person in the plaintiffs position at the material
time. To the extent, therefore, that the learned trial judge resolved this issue with
reference to the Leadership Code, we are satisfied that he had misdirected himself as to
the proper approach. We are therefore at large.

While we agree that the burden of the article referred to the then "present" leadership, yet
the citing in the context set out of the TAW scandal (which itself was not disputed in its
reference to the plaintiff, though a past leader) did, in our opinion, bring in and include
the plaintiff. We agree with the plaintiff's submission that it is immaterial that he was
wrongly referred to in the discussion of a class to which he no longer belonged. Indeed, it
has long been immaterial that a defendant did not intend to refer to a particular plaintiff
so long as the words in question could be understood by reasonable people who know the
plaintiff to refer to him: (see para. 292 of Gatley on Libel and Slander, 8th edition).

This brings us to consider whether the statement about "hangers-on" in its ordinary and
natural meaning, meant and was understood to mean, as pleaded, that any such person
concerned is not a humanist and is, therefore, "Undesirable and a disgrace in the Zambian
society." It was argued by the plaintiff that the expression "hangers-on was of itself
derogatory in whichever sense it is to be understood. The defence pleaded was a denial
that the words bore or could be understood to bear the alleged or any other defamatory
imputation. Once again, the full statement complained of reads:

"A good number of leaders are hangers-on and lack depth and
dedication to the humanist cause."

As we see it, the statement is an entire statement and the whole of it must. be read and
understood in that light. In this regard, neither the expression "hangers-on'' nor any other
can legitimately be severed and construed in isolation. We should re-affirm, at this stage,
the established rule that where words are alleged to be defamatory their ordinary
meaning it is neither for the plaintiff nor for any witness to give evidence

p33

as to, or to interpret, the meaning of the allegedly defamatory statement. This is the
proper prerogative and function of the Court. In this connection we refer to Zambia
Publishing Co. v Kapwepwe (1) in particular the judgement of Baron, D.C.J. at page 301

490
from line 37; and also to Zambia Publishing Co. Limited v Joes Haulage(2). We have
looked at the whole statement in issue as other reasonable ordinary men would and we
find that the derogatory imputations sought to be drawn are far fetched and do not arise
on a plain and ordinary reading of the words used. As we see it, the statement in its full
context suggests no more than that some people in the leadership have not made any
significant contribution towards the advancement of the appropriate national cause
therein referred to. Some other interpretation to a similar effect would be reasonable and
acceptable, but we do not agree that the defamatory imputations such as those pleaded or
contended in the submissions could or did arise. That disposes of he appeal in so far as it
relates to "hangers-on''.

We now turn to the second part of this appeal namely, the argument that the defence of
fair comment ought to have been, and should now be, rejected in relation to the second
statement. As already noted this other statement stated that:

"And of course others have got away with the TAW scandal."
The Plaintiff has advanced, broadly speaking, two main arguments under this part. The
first is to the effect that the learned trial judge was wrong in finding that the TAW
scandal referred to in the article complained of meant and was understood to mean one
and the same scandal as the TAW scandal referred to in the National Assembly. The
second argument is to the effect that; since the defendant's version of the TAW scandal
consisted of false and unfounded allegations made by them in previous newspaper issues,
the defendant had asserted in the article under complaint that the plaintiff had got away
with some criminal offence.''

It is common ground that the statement under discussion assumes relevant meaning only
when and if the reader has some knowledge previously acquired from other sources. In
this regard, the plaintiff relied on previous articles published by the defendant not only
for his identification with the subject statement but also for the facts which he contends
were not truly stated so as to afford the defendant the plea of fair comment. On the other
hand, the defendant in their defence pleaded to the effect that the relevant facts were
contained in the privileged debates of the National Assembly as reflected in two reports
which are on record. The plaintiff contends, and asks us to find, that, contrary to the
defendant's plea in the defence, the comment was not based on the Parliamentary debates
but was in fact based on the previous newspaper articles; that such previous articles
falsely alleged that the TAW scandal resulted from the plaintiff and others "conniving to
swindle the Government"; that no such statement was made in Parliament, and that
accordingly, the comment that the Plaintiff and others got away with

p34

the TAW scandal was not justified. It was the plaintiff's submission that the defendant's
previous articles implied that the plaintiff had committed a criminal offence and that the
getting away with it, therefore, meant that he had not been punished for a criminal
offence, when he had committed none. We have been informed that the plaintiff has
instituted other proceedings in respect of those other articles.

491
Mr Jearey, on the other hand, submits that the previous newspaper articles should be
referred to only for the limited purpose of identifying the plaintiff. He submits further
that, as the Plaintiff chose not to consolidate his various Court actions and since the
Plaintiff did not, in his Reply to the Defence, dispute the averment that the comment was
based on Acts which had their origin in the privileged debates of Parliament, the
Plaintiff's submission should not be entertained. It was his submission that this Court
should not pronounce upon the falsity or truth of the previous articles which are
themselves the subject of their pending litigation in the High Court.

As we have already stated, the statement complained of can only be understood by

reference to facts obtainable from other sources. We entertain some doubts as to whether
the ordinary reader of the article complained of would ordinarily have read the Hansard.
For present purposes, however, there is evidence on record that the alleged TAW scandal
was discussed in Parliament and can therefore be said to have originated from there. We
also find that, as the previous newspaper articles (which reported or purported to report
the scandal as discussed in Parliament) were properly introduced into the record, they
can be referred to for the purpose of ascertaining the context of the statement under
complaint. For this purpose, it is unnecessary, it would be highly undesirable, for us to
make any finding as to the truth or otherwise of the contents thereof; our only interest in
those articles being limited to ascertaining what was written for the purpose of fixing
the context, as already stated.

From the sources to which we have referred, we note that various matters and events
were alleged to have transpired in relation to certain contracts between TAW
International Leasing Corporation and the Government of Zambia. Such events allegedly
included the signing of certain waiver letters (waiving certain breaches of contract by
TAW) by a Mr Siwo allegedly at the instance and request of the plaintiff and a Mr Wood.
It is also recorded, particularly in the Hansard, that certain Government officials played
various roles in the matter and that ultimately the Government failed to give sufficient
notice of recision of the contracts. The Government paid some money to TAW at an
arbitration in London. It is not in dispute that members of Parliament considered these
events to be scandalous.

As can be seen from the foregoing, there were pleaded in defence certain of the events
surrounding the TAW issue which are borne out by the sources to which we have
referred. The case of Kemsley v Foot (3) which Mr Jearey cited is in point since we find
that there was established, in this case, a sufficient substratum of fact upon which the
comment

p35

could be based. We find in particular that the events surrounding the "waiver letters"
were sufficient justification for the comment and once this is so, as it is, the reference to
the TAW scandal need not relate to any alleged "conniving to swindle". We further find
and hold that reference to getting away with it does not mean that the scandal must have

492
been criminal. We are satisfied that there can be no basis for confirming the comment
made to any particular facet of the scandal as reported in the various documents on
record. As we see it, therefore, the fact that members of Parliament referred to "scandal"
in relation to the TAW affair justified its description as a scandal.

It is also not in dispute that, as at the time of the publication complained of, no
disadvantage or penalty of any kind whatsoever was incurred by, or visited upon, those
implicated in the affair.

We find and hold that the determination by the Court below, that the defence of fair
comment was available, must be upheld. This appeal cannot succeed and we dismiss it,
with costs to be taxed in default of agreement.

Appeal dismissed

LUMINA AND MWIINGA v THE ATTORNEY-GENERAL (1990 - 1992) Z.R. 47

(S.C.)

SUPREME COURT
SILUNGWE, C.J., GARDNER, SAKALA, CHAILA AND LAWRENCE, JJ.S
4TH AND 11TH JULY, 1991
(S.C.Z. JUDGMENT NO. 5 OF 1991)

Flynote

Parliament - Members of - Requirement that member be member of United National

Independence Party in terms of Second Republic Constitution - Amendment of
Constitution to provide for multi-party government - Members of party resigning
entitled to stay Member of Parliament.
Parliament - Members of - Nominated members - Provision for nominated members
abolished - Such members remain Member of Parliament until properly removed or
Parliament dissolved.

493
Headnote

The appellants had been Members of Parliament and of the United National
Independence Party (UNIP) under the Second Republic Constitution. In terms of art. 4 of
the Constifution only the UNIP was permitted to exist as a political party. Subsequent to
the passing of Act. 20 of 1990, which re-introduced a multi-party system of govemment,
the appellants resigned from the UNIP. They applied for a declaration, inter alia, that
their resignation from the UNIP would not require them to vacate their seats in the
National Assembly, as arts. 67(c) and 71(2)(b), which required members of the National
Assembly to be members of the UNIP, were discriminatory and either null and void or
ineffective. In addition they sought an order declaring that the nominated Members of
Parliament, including the Prime Minister and certain Cabinet Ministers, had ceased to be
members of the National Assembly with the amendments to the Constitution.

Held:

(1) That art. 4 had restricted fundamental rights and freedoms of the individual as
enshrined in the Constitution. Consequently, arts. 67(c) and 71(2)(b)were in
conflict with those fundamental rights and freedoms and were, therefore,
ineffective.

(2) Accordingly, that the appellants were entitled to remain as members of the
National Assembly.

(3) Further, that the nominated Members of Parliament had been properly
appointed in terms of the Constitution before its amendment. They did not
automatically cease to be members of the National Assembly because of the
amendments to the Constitution which abolished the provision for nominated
members, as the Constitution made provision for the termination of their
appointments by the President. In the circumstances all current Members,
whether elected or nominated, were entitled to continue to sit in the National
Assembly until the dissolution of the current Parliament or their nomination
was revoked by the President.

For the appellants: L.P. Mwanawasa, Mwanawasa and Co, and V. B. Malambo,
Mhango and Co.
For the respondent: M. Mukelabai, State Advocate, and E. Sewanyana, State
Advocate.

Judgment

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

p48

494
This appeal arises out of a decision of the High Court wherein the appellant's joint
petition under art. 29, of the Constitution was dismissed.

The background information of this case is that the first and second appellants
(hereinafter referred to as the appellants) were duly elected as members of the National
Assembly for Chikankata and Mazabuka Parliamentary Constituencies on 27th
November, 1988, under a one-party system which was introduced in Zambia at the dawn
of the Second Republic on 20th December, 1972. Under art. 4 of the Second Republic
Constitution, the only political party recognised in the country was the United National
Independence Party (hereinafter referred to as ''UNIP'').

The then art. 4 of the Constitution read as follows:

'' 4 (1) There shall be one and only one political party or organisation
in Zambia, namely, the United National Independence Party (in the Constitution referred
to as 'the Party').
(2) Nothing construed in this Constitution shall be so construed
as to entitle any person lawfully to form or attempt to form any political party or
organisation other than the Party, or to belong to, assemble or associate with or express
opinion or to do any other thing in sympathy with, such political party or organisation.
(3) . . . .''

And art. 13 is in these terms:

''13 It is recognised and declared that every person in Zambia has

been and shall continue to be entitled to the fundamental rights and freedoms of the
individual, that is to say, the right, whatever his race, place of origin, political opinions,
colour, creed or sex, but subject to the limitations contained in art. 4 and in this Part, to
each and all of the following, namely:

(a) Life, liberty, security of the person and protection of the law;
(b) Freedom of conscience, expression, assembly and association,
and
(c) Protection for the liberty of home and other property and
from deprivation of property without compensation;

and the provisions of this Part shall have effect for the
purpose of affording protection to those rights and freedoms subject to such limitations of
that protection as are contained in art. 4 and in those provisions, being limitations
designed to ensure that the enjoyment of the said rights and freedoms by any individual
does not prejudice the rights and freedoms of others for the public interest.''

On 17th December, 1990, Act. 20 of that year was signed by the President, thereby
ushering in constitutional changes one of which - in fact the most crucial - was the
reintroduction, once again, of a multi-party system of government. Under the said Act.

495
20, the old art. 4 was repealed and a new art. 4A was introduced. This article provides
that:

''4A. Notwithstanding the repeal of art. 4:

(a) The institutions and the organs of the Party recognised under
this Constitution shall continue to exist until the next dissolution of Parliament; and
(b) Any party formed as a consequence of the repeal of art. 4
shall only participate in an election to the National Assembly after the next dissolution of
Parliament.''

Following the repeal of art. 4, the appellants tendered their resignation from UNIP and
became members of the Movement for Multi-Party

p49

Democracy (MMD) - a new political party that was formed on 20th December, 1990.

In an effort to forestall any possible action that might be taken to remove them from
Parliament, having relinquished their membership of UNIP, the appellants petitioned the
High Court and prayed for a declaration:

(a) That the application to them of art. 71(2)(b) will contravene

their fundamental human rights as recognised under arts. 13, 22, 23 and 25 and that the
said art. 71(2)(b) is, therefore, null and void;
(b) That notwithstanding their resignation from UNIP, they will
not be required to vacate their respective seats in the National Assembly, and
(c) That the current holders of the office of the Prime Minister
and those Cabinet Ministers of State who are nominated members of Parliament ceased
constitutionally to be members of the National Assembly and to hold their respective
offices from 17th December, 1990, when the said Act came into force and that their
continued pretence to the said offices is unlawful.

In regard to (a) and (b) above, the High Court found that, as the petitioners had been
elected to the National Assembly by virtue of their membership of UNIP and were fully
aware that the retention of their seats in the National Assembly was dependent upon their
continued membership of UNIP, they cannot be heard to complain against discrimination
under arts. 13, 22 and 25 of the Constitution as their resignation was an act of their own
making. On this basis, the High Court held that the provisions of arts. 67(c) and 71(2)(b)
do not contravene any of the fundamental rights recognised under arts. 13, 22, 23 and 25
of the Constitution and that the petitioners had automatically vacated their seats in the
National Assembly when they ceased to be members of UNIP on 1st January, 1991.

The High Court then considered (c) above and came to the conclusion that, although the
new art. 54 of the Constitution abolished the office of nominated member of the National
Assembly, the position of existing nominated members was nonetheless preserved by art.
4A because they were members of the National Assembly which was one of the

496
institutions and organs of the Party recognised under the Constitution and which was
allowed to continue until the next dissolution of Parliament.

On appeal, Mr Mwanawasa, learned counsel for the appellants, has argued three grounds
which we shall now consider.

In the first ground, it is contended that the learned trial judge misdirected himself in law
by defining the expression 'the Party' as meaning the United National Independence
Party (UNIP) and that membership of UNIP is, therefore, a pre-requisite for membership
of the National Assembly under the provisions of arts. 4A, 67(c) and 71(2)(b) of the
Constitution.

Article 67 sets out the qualifications for a person to be elected to the National Assembly
and provided, inter alia, under paragraph (c) that such a person must be a member of the
Party. Article 71(2)(b) provides that a member shall vacate his seat if he ceases to be a
member of the Party.

This ground will be discussed in two parts: the first and main part will

p50

relate to the interpretation of the expression ''the Party'' under art. 4A(a) of the
Constitution; and the second to the interpretation of art. 4A(b).

According to Mr Mwanawasa's submission, the expression ''the Party'' is not a reference

to UNIP only but also to any other political party because, if the reference were to be
attributed to UNIP alone, this would create confusion and conflict in that it would abolish
the right of an individual who is not a member of UNIP to be elected to, or to remain a
member of, the National Assembly in terms of arts. 67(c) and 71(2)(b) of the
Constitution. It is argued, moreover, that the recognition of UNIP was removed when art.
4 was repealed.

It is not in dispute that the expression ''the Party'' under the repealed art. 4 meant UNIP.
As previously stated, clause (1) of the article recognised the establishment of 'one and
only one political party or organisation in Zambia, namely, the United Independence
Party (in the Constitution referred to as "the Party'').

Mr Mukelabai, learned State Advocate for the respondent, has rightly drawn attention to
s. 16 of the Interpretation and General Provisions Act, Cap. 2, which reads:

''16. When one written law amends another written law, the
amending law shall, so far as it is consistent with the tenor thereof, be construed as one
with the amended written law.''

In a limited context, we agree that art. 4A is consistent with the tenor of art. 4 and that, as
such, the two provisions should be construed as one. Under art. 4, UNIP was referred to

497
as ''the Party'' using a capital ''P''. And so did, and still do, other provisions of the
Constitution, including the now art. 4A(a). Actually, art. 4A(a) states that:

''4A(a) the institutions and organs of the Party recognised

under this Constitution shall continue to exist until the next dissolution of Parliament.''

Firstly, the phraseology: ''shall continue to exist until . . .'' can, and does, only refer to the
institutions and organs of the only political party then existing, namely, UNIP, since only
something that is already in existence can ''continue to exist'', while something that is
non-existent can merely start to exist. This is elementary logic. Secondly, Mr
Mwanawasa argues that organs and institutions of UNIP, such as the Central Committee,
the National Council, and the General Conference (now Congress) are referred to in other
parts of the Constitution but that this reference is not a recognition of the Party, it is a
recognition of its organs and institutions only. We are unable to accept this argument as a
recognition of UNIP's organs and institutions is tantamount to a recognition of UNIP
itself since its organs cannot exist in a vacuum. Indeed, reading the Constitution as a
whole, any reference to the Party with a capital ''P'' is a reference to UNIP.

We are satisfied that the expression ''the Party'' in art. 4A(a) means UNIP and that the
learned trial judge did not misdirect himself on this issue. This ground falls.

This brings us to the second part of the first ground, namely, the interpretation of art.
4A(b). As we have observed, clause (b) stipulates that:

''(b) Any party formed as a consequence of the repeal of art. 4

shall only

p51

participate in an election to the National Assembly after the

next dissolution of Parliament.''

The clause clearly purports to bar or exclude any political party (note here the use of a
small ''p'' in the expression ''any party'') other than UNIP from participation in a by-
election prior to the dissolution of the present Parliament. This prohibition applies
peculiarly to political parties only (other than UNIP); it has no application to individuals
as such. There is no prohibition against the participation of any independent candidate in
an election to the National Assembly before (or after) the dissolution of the current
Parliament. For this purpose, an independent candidate may be a member of a political
party who stands as an unofficial candidate of his party; or a person who does not belong
to any political party.

On this point, we would agree with Mr Mwanawasa but it does not affect our finding
above as to the meaning of the term ''Party''.

498
The second ground is that, since arts. 4A, 67(c) and 71(2)(b) are in conflict with the
fundamental human rights recognised under arts. 13, 22, 23 and 25 of the constitution,
the latter should prevail over the former. Articles 67(c) and 71(2)(b) provide that:

''67. Subject to the provisions of the art. 68, a person shall be

qualified to be elected or nominated as a member of the National Assembly if, and shall
not be qualified to be so elected or nominated unless:

(c) He is a member of the Party.

71(2) Any member of the National Assembly shall vacate
his seat in the Assembly:
(b) If he ceases to be a member of the Party.''

It is argued on behalf of the appellants that arts. 4A, 67(c) and 71(2)(b) are discriminatory
in themselves and in their effect because, by depriving non-members of UNIP the right to
contest Parliamentary elections and the right to remain members of the National
Assembly, these provisions confer upon members of UNIP privileges and advantages
which are denied to non-members of that Party. Further, it is argued that the said
provisions subject non-UNIP members to disabilities or restrictions to which UNIP
members are not made subject. Mr Mwanawasa urges us to find that arts 67(c) and 71(2)
(b) are either null and void or ineffectual, and that it could not have been the intention of
Parliament to give the rights under arts. 13, 22, 23 and 25, only to have them taken away
by arts. 67(c) and 71(2)(b).

Like the first ground, this one will also be divided into two parts, that is whether, in light
of art. 4A, arts. 67(c) and 71(2)(b) are in conflict with arts. 13, 22, 23 and 25; and, if this
is so, whether arts. 67(c) and 71(2)(b) are discriminatory either in themselvesor in their
effect.

In the first place, arts. 13, 22, 23 and 25 all fall under Part III of the Constitution which
guarantees the protection of fundamental rights and freedom of the individual. Article 13
relates to fundamental rights and freedoms; art. 22 to the protection of freedom of
expression; art. 23 to the protection of freedom of assembly and association; and art 25 to
the protection from discrimination on the grounds of race, tribe, place of origin, political
opinions, colour or creed. For the purpose of this case, it will suffice to set out clauses
(1), (2) and (3) of art. 25:

p52

''25 (1) Subject to the provisions of clauses (4), (5) and (7), no
law shall make any provision that is discriminatory either in itself or in its effect.

(2) Subject to the provisions of clauses (6), (7) and (8), no

person shall be treated in a discriminatory manner by any person acting by virtue of any
law or in the performance of the functions of any public office or any authority.

499
 (3) In this article, the expression 'discrimination' means
affording different treatment to different persons attributable wholly or mainly to their
respective descriptions by race, tribe, place of origin, political opinions, colour or creed
whereby persons of one such description are subjected to disabilities or restrictions to
which persons of another such description are not made subject or are accorded privileges
for disadvantages which are not accorded to persons of another such description.''

There can be no doubt that art. 4 restricted the fundamental rights and freedoms of the
individual as enshrined in arts. 13, 22, 23 and 25. But when art. 4 was repealed, those
fundamental rights and freedoms were revived and given their full effect. Consequently,
arts. 67(c) and 71(2)(b) are now in conflict wit those fundamental rights and freedoms
guaranteed by arts. 13, 22, 23, 25 and are, therefore, ineffective.

Secondly, and as the first question has been resolved in the affirmative, it is necessary to
determine whether arts. 67(c) and 71(2)(b) are discriminatory. As art. 4 which imposed
restrictions on arts. 13, 22, 23 and 25, has since been repealed, it is manifest that arts.
67(c) and 71(2)(b) have become discriminatory in themselves and in their effect, vis-à-vis
the provisions of art. 25(1), (2) and (3), in that they restrict the rights of individuals to sit
in the National Assembly unless they are members of UNIP.

As the appellants' petition prays for a declaration that they continue to remain as
members of the National Assembly, despite their resignation from UNIP, and art. 71(2)
(b) is discriminatory against them and, therefore, ineffective, now that art. 4 has been
repealed, we accordingly grant the declaration sought. The appellants will thus continue
to sit in the National Assembly as independent members for the duration of the existing
Parliament, notwithstanding their resignation from UNIP.

The third and final ground is that the learned trial judge erred in law in holding that the
National Assembly was an institution or organ of UNIP recognised under the
Constitution; and that as such, nominated members of the National Assembly were
entitled to continue to be members of the National Assembly, despite the amendment to
art. 54. By Act. 20 of 1990, art. 64 of the Constitution was repealed and replaced. The
repealed article provided that:

''64. The National Assembly shall consist of:

(a) One hundred and twenty-five elected members; and
(b) Such nominated members as may be appointed
under art. 56; and
(c) The Speaker of the National Assembly.''

The new and present art. 64 reads:

''64. The National Assembly shall consist of -

(a) One hundred and fifty elected members; and
(b) The Speaker of the National Assembly.''

500
The findings of the learned trial judge on this issue were that :

(a) By repealing art. 64, the intention of Parliament was

to increase the number of

p53

elected members from one hundred and twenty-five to one hundred and fifty;
(b) By omitting to include nominated members from being part
of the National Assembly, the intention was to do away with nominated members; and
(c) Since the effect of the new art. 64 was to, and did expressly,
abolish the position of nominated members, art. 66, which makes provision for the
President to appoint up to a maximum of ten nominated members, was superfluous and
contrary to the spirit of the new article.

We accept these findings as having been properly made. As the old art. 64 established
(inter alia) the office of nominated member, its repeal automatically abolished that office
since the new art. 64 makes no provision for nominated members. Although art. 65 was
not repealed, its provisions were rendered otiose as their efficacy was dependent on the
repealed art. 64. The learned trial judge was, therefore, correct to hold that nominated
members can no longer be appointed since 17th December, 1990 when the old art. 64
was repealed.

However, it was a misdirection to hold that there was no need for nominated members to
vacate their seats as art. 4A(a) of the Constitution makes provision 'for the continuation
of existing institutions and organs of the Party until the next dissolution of Parliament.

It seems to us that there was a misunderstanding on the part of the learned trial judge with
regard to the expressions ''existing institutions and organs of the Party recognised under
this Constitution'', on one hand, and ''institutions recognised under art. 68 of the
Constitution'', on the other. This would seem to be the position because, at page 49 of the
record of appeal, the following extract from the judgment appears:

''The National Assembly is one of the institutions recognised

under art.68 of the Zambian Constitution.''

Unquestionably, the National Assembly is not an institution or organ of the ''Party'': it is

one of the three important organs or pillars of Government, namely, the executive, the
Legislature and the judiciary.

As to whether or not the existing nominated members should continue to sit in the
National Assembly, we are satisfied that, as they were properly appointed under the
provisions of art. 66 and of the old art. 64, they do not automatically cease to be members
of the National Assembly on repeal of the old art. 64 because the Constitution makes
provision for the termination of their appointment by the President. In the circumstances,
all current members of the National Assembly, whether elected or nominated, are

501
entitled to continue to sit in the National Assembly until the dissolution of the current
Parliament or, in the case of nominated members, their nomination is revoked by the
President under the provisions of art. 71(2)(b) of the Constitution.

What the appellants seek here is a declaration that the current holders of the office of the
Prime Minister and those Cabinet Ministers of State who are nominated members of the
National Assembly ceased constitutionally to be members of the National Assembly and
to hold their respective offices from 17th December, 1990, when Act. 20 of

p54

1990 came into force and that their continued pretence to the said offices is unlawful.
However, on the basis of what we have said in relation to the third ground, the
declaration sought is refused.

Having regard to the fact that, of the two issues in this appeal, the appellants are
successful in one but unsuccessful in the other, we make no order as to costs.

Appeal allowed in part.

EDWARD JACK SHAMWANA v LEVY MWANAWASA (1994) S.J. 93 (H.C.)

HIGH COURT
CHIEF JUSTICE OF ZAMBIA
20TH AND 30TH MAY, 1994

Flynote

Injunction - Referring to plaintiff as 'treason ex-convict' in light of a full presidential

pardon

Headnote

The plaintiff announced his intention to contest the Mumbwa by-election and the
defendant started referring to him as 'a treason ex-convict'. The plaintiff then applied for
an interim injunction to restrain the defendant “by himself, his agents whomsoever or

502
servants referring to the plaintiff as a treason ex-convict or as a convict in the light of a
Presidential absolute and unconditional pardon”.

Held:

(i) Any judge faced with an ex parte application for an injunction is duty bound to
critically examine and not gloss over such application and to be satisfied that
the situation revealed justifies an order on an urgent basis pending an inter
parte hearing shortly thereafter

For the plaintiff: Mr C. Hakasenke of Shamwana and Company.

For the defendant: In person.
_________________________________________
Ruling

CHIEF JUSTICE OF ZAMBIA: delivered the judgment of the court.

On 5th May,1994, the Plaintiff issued a Writ of Summons out of the principal registry
endorsed with a claim for:

“1.Damages for malicious slander uttered at different fora

since plaintiff declared his intention to stand as a President of National Party and as a
candidate for the Mumbwa Constituency by election that the plaintiff is an ex-convict or
similar sentiments asserting that for that reason he is unfit to govern Zambia when it fact
it is a fact that Political Prisoners have been elected leaders in their countries throughout
the World, and the plaintiff received a complete and unconditional pardon.
2. Injunction restraining the Defendant, his agents whosoever,
or servants referring to the plaintiff as treason ex-convict or as convict in the light of a
Presidential absolute and unconditional pardon.
3. Further or other relief.”

By an ex parte summons, the plaintiff applied for an interim injunction to restrain the
defendant “by himself, his agents whomsoever or servants referring to the plaintiff as a
treason ex-convict or as a convict in the light of a Presidential absolute and unconditional
pardon”. Although I had during the hearing refused an application made by the
defendant under Order 32/13 of the Rules of the Supreme Court (1993 White Book) to
adjourn the whole of the hearing into open court, I agreed to deliver this ruling in open
court of the issues addressed which I consider to be of general importance.

when the application was lodged, I did not consider it appropriate to proceed ex parte and
directed that the application be heard inter parte. At the last but one adjournment, the
plaintiff remarked to the effect that in the normal course, he should have been given an ex
parte order.

p95

503
Let me take this opportunity to dispel the notion, which unfortunately seems to be widely
held, that ex parte injunctions are available more or less as a matter of course; almost
automatically for the asking. They are not and in this regard I wish to draw attention to
Order 29 R.S.C.1993 White Book, especially the discussion at Order 29/1/8. I also wish
to borrow from the language of paragraph 1051, Halsbury’s Laws of England, 4th
Edition, Volume 24, that an injunction will not usually be granted without notice, but if
the court is satisfied that the delay caused by proceeding in the ordinary way might entail
irreparable or serious mischief, it may make a temporary order ex parte upon such terms
as it thinks just. The granting of ex parte injunctions is the exercise of a very
extraordinary jurisdiction, and therefore the time at which the plaintiff first had notice of
the act complained of will be looked at very carefully in order to prevent an improper
order being made against a party in his absence, and if the applicant has acquiesced for
some time it will not be granted.

The passage from Halsbury’s supports the proposition that it is an elementary

requirement of fairness and justice that as a general rule both sides be afforded the
opportunity to be heard and where it is sought to depart from this norm, as in an ex parte
application for an injunction, strong grounds must be shown to justify the application
being made ex parte. The application must be made promptly as soon as the plaintiff
becomes aware of his or her cause of action and there is need either to preserve the status
quo or to prevent irreparable or serious mischief. Ex parte injunctions, as the learned
authors of the White Book and Halsbury’s Laws of England observe, are for cases of real
urgency where there has been a true impossibility of giving notice to the opponent. what
is more, the material that is placed before the court on an ex parte application for an
injunction should disclose, at first glance or prima facie, a strong case on the merits for
the possible grant of an interlocutory injunction once an inter partes hearing takes place.
I make no apology for holding the very firm view that any judge faced with an ex parte
application for an injunction is duty bound to critically examine and not gloss over such
application and to be satisfied that the situation revealed justifies an order on an urgent
basis pending an inter parte hearing shortly thereafter on a date to be specified preferably
in the ex parte order, in terms of the practice direction recently issued by me on the
subject. I was not satisfied on the material placed before me that this was a proper case
for an ex parte order on an emergency basis.

I now turn to the application which has since been heard inter partes. In coming to my
decision in this ruling, I have heeded the caution given in such cases as Turnby Properties
v Lusaka West Development Company Ltd (1984) ZR 85 that I should in no way pre-
empt the decision of the issues which are to be decided on the merits and the evidence at
the trial of the action. I have also considered the authorities cited under paragraphs 167
and 168 of Vol. 28, Halsbury’s Laws of England, 4th edition, in support of the statement
that:

“because of the court’s reluctance to fetter free speech and

because of the questions that arise during the proceedings, such as whether the meaning
is defamatory, whether justification or fair comment are applicable and as to malice, are
generally for the jury - (in our case the

504
p96

trial judge) - interlocutory injunctions are granted less readily

in defamation precedents than in other matters and according to different principles.”

These passages have been cited by the defendant who, like the plaintiff, is a senior lawyer
in this country. I have perused the authorities starting with Bonnard v Perryman (1891)
2 Ch. 269 and Lord Denning’s remarks in Hubbard v Piti (1975) 3 A11 ER1. Since our
case concerns an application to prevent by repetition a wrong that is apprehended, I
consider it appropriate to quote a passage from the judgement of Lord Coleridge, C.J., in
the Bonnard case at P. 284 where, after affirming the court’s power to grant interlocutory
injunctions as a matter of jurisdiction, he went on to say:

“but it is obvious that the subject matter of an action for defamation is so special as to
require exceptional caution in exercising the jurisdiction to interfere by injunction before
the trial of an action to prevent an anticipated wrong. The right of free speech is one
which it is for the public interest that individuals should possess, and, indeed, that they
should exercise without impediment, so long as no wrongful act is done; and, unless an
alleged libel is untrue, there is no wrong committee; but, on the contrary, often a very
wholesome act is performed in the publications and repetition of an alleged libel. Until it
is clear that an alleged libel is untrue, it is not clear that any right at all has been
infringed; and the importance of leaving free speech unfettered is a strong reason in cases
of libel for dealing most cautiously and warily with the granting of interim injunctions”.

In the Hubbard case, Lord Denning at p.5 cited with approval the sentiments of Lord
Coleridge, C.J. about free speech and the fact that the courts will not restrain a defendant
who proposes to justify the words complained of. Para. 168 of Halbury’s Vol. 28
summarises the position as follows:

“it is well settled that no injunction will be granted if the defendant states his intention of
pleading a recognised defence, unless the plaintiff can satisfy the court that the defence
will fail. This principle applies not only to the defence of justification but also to the
defences of privilege, fair comment, consent, and probably any other defence.”

Cases are cited in support of each of the several aspects of the statements I have quoted
and which, for the sake of brevity, I will not repeat here.

I have before me affidavits on both sides and I have carefully addressed myself to the
submissions. It was not in dispute that, subject to the special consideration which apply
to defamation cases, the usual considerations which apply to all other application for
interlocutory injunctions generally apply also to a defamation case. Thus, for example,
the plaintiff’s right to relief must clearly be shown: see Shell And BP (Z) Ltd v
Conidaris and Others (1975) Z.R. 174 and American Cyanamid (C) v Ethicon Ltd (1975)
A.C. 396 although the latter case’s applicability to defamation cases in a wholesale
manner has been doubted: see note 4 to par. 167 of Halbury’s, vol. 28. Mr

505
p97

Hakasenke sought to establish the plaintiff’s clear right to relief by citing para. 952 of
vol. 8 of Halsbury’s Laws of England, 4th Edition, as to the effect of a pardon which is to
clear the affected person from all infamy, and from all consequences of the offence for
which it is granted, and from all statutory and other disqualifications following upon
conviction.

“it makes him, as it were, a new man, so as to enable him to maintain an action against
any person afterwards defaming him in respect or the offence for which he was
convicted”.

The further authority cited was Leyman v Latimer (1878) 3 eXD 352. It should be noted,
for the record, that the defendant did not dispute what the legal effect of a pardon is. But
he submitted that, as matter of ordinary language, the reference complained of was
factually correct. I have read the report on the Leyman case and the judgements rendered
by Bramwell, L.J., Brett,L.J., and cotton,L.J.

The effect of a pardon and that of a spent conviction were alluded to and the offending
words in that case were references to the plaintiff as a “convicted felon” and “felon
editor”. Their Lordships in that case were discussing the pleadings in a case which had
not been fully tried on the merits and evidence. What emerges clearly from the
judgements is that the court drew a distinction between the allegation that the plaintiff
had at some previous time been convicted of felony which words were literally true, and
the reference to “felon editor” which described the plaintiff as though still being a
“felon”. Needless to say, the defence of jurisdiction was not supported on the latter
allegation since quite clearly it is desirable that a time should come when a person who
has been convicted of felony should cease to be called a felon and it is cruel, as
Bramwell,L.J., put it, “to rake up what is past.” As I have already stated, I do not have to
anticipate what the trial court will find. suffice it to say that there appears to be an
arguable case either way and my decision will therefore not rest on the presence or
absence of a clear right to relief but on the other principles which I have endeavoured to
adumbrate in relation to defamation cases.

In this application which is in the nature of a Quia timet application to prevent a future
wrong by repetition which the plaintiff apprehends, it is vitally important for the plaintiff
to show some evidence of the defendant’s intention to repeat the words that would legally
be objectionable and actionable. This is particularly important if the court is to avoid
making a global order which should simply be oppressive to the defendant who has
shown to my satisfaction, by his affidavit, that he intends to plead some recognised
defences. The case of Harakas and others v Baltic Merchantile and Shipping Exchange
and another (1982) 2 A11 E.R. 701 which the defendant cited is very much in point.

At the end of the day, having weighed the mischief sought to be restrained and the
principles and authorities; and having considered the affidavits to the extent that they

506
were not objectionable for being argumentative and non-factual; and also having taken all
the submissions into account, I am not satisfied that this is an appropriate case in which I
should exercise the discretionary jurisdiction of the court to restrain the defendant by
interlocutory injunction pending trial. I have also not lost sight of the principle that
adequacy of monetary compensation

p98

is nearly always a ground for not granting such interlocutory relief. Of course, I do not
propose to dwell on the arguments related to the plaintiff’s right to seek election to
political office nor the defendant’s right to campaign freely for or against any person.
Such arguments were, in my considered opinion, otiose and surplus to the requirements
of this application since the issue was simply whether it was necessary and appropriate
to grant an interlocutory injunction to prevent irreparable or serious mischief. For the
reasons I have given, I refuse this application.

Because the application raised important issues of general interest and because it also
provided me with the opportunity to pronounce upon the question of ex parte
applications of this nature which appeal to be routinely given even to dilatory plaintiffs
and even in doubtful situations, I consider that the costs should be in the cause and I so
order.

R. v. CHIBABE HANGUMBA. (1963-1964) Z. AND N.R.L.R. 54

[Before the Honourable Mr. Justice CHARLES on the 5th March, 1964.]

Flynote

Murder and manslaughter defences open to accused - when homicide is lawful.

Headnote

Hangumba was charged with murder. He raised the plea of self-defence. This defence in
its applicability to homicide, and other defences to such a charge were considered by the
learned judge.

Held:

507
The Crown had not satisfied the court that the accused did not kill the deceased in self-
defence and the accused was acquitted.

Cases cited:
(1) R.v. Rose (1884) 15 Cox 540.
(2) Zabroni v. R. [1956] R & N. 195.
(3) Chan Kau v. Reginam [1955] 1 All E.R. 266.
(4) R. v. Lobell [1957] 1 All E.R. 734.

For the Crown: A. B. Mitchell - Heggs, Assistant Crown Counsel.

For the accused: F. Chuula.
_________________________________________
Judgment

CHARLES, J.: The accused is charged with murder contrary to section 177 of the Penal
Code in that, on the 1st January, 1964, in the Mazabuka District, he murdered Eson
Habanyama.

[The judgment summarised the evidence and continued:]

On the evidence I have no doubt that the accused on the 1st January, 1964, in the
Mazabuka District, caused the death of Eson Habanyama by striking him with a knife and
that the fatal blow was inflicted voluntarily by the accused, that is, consciously and in
exercise of volition.

If the evidence of the two principal witnesses for the prosecution as to the circumstances
of the stabbing of the deceased by the accused is true, there can be no doubt that the
accused is guilty of murder, as obviously he stabbed the deceased without legal
justification or excuse, with intent at least to cause grievous harm and without such
provocation from the deceased as reduced the crime to manslaughter.

The defence, however, is that, having regard to the accused's statements to the police, the
evidence does not establish beyond reasonable doubt that the killing was not done in self-
defence, and that, accordingly, the accused is entitled to a complete acquittal.

A homicide is lawful if it is committed in preventing or resisting the commission of

certain crimes in circumstances which render it either justifiable or excusable. When so
committed the homicide is said to have been committed in self-defence, or more
accurately by way either of public or of private defence. Justifiable homicide is homicide
committed in the course of preventing or resisting the commission of treason or of a
forcible and violent felony. Excusable homicide is homicide committed in the course of
preventing or resisting the commission of an assault

p55

508
or trespass which was not a forcible and violent felony. The other constituent elements of
each form of homicide ate identical, namely, that the accused did the act which caused
the homicide in the honest belief that it was necessary in order to prevent or resist the
commission of the crime in the course of which it was done, and the doing of the
causative act was reasonably necessary to prevent or resist the commission of the crime.

Although the distinction between justifiable homicide and excusable homicide is based
on an historical difference in their consequences which no longer exist, there is still a
theoretical difference between them in the approach to the question whether the causative
act was reasonably necessary. A person present at the commission of a treason or of a
forcible and violent felony is not bound to retreat from the scene: on the contrary, his
duty is to assist in the arrest of the offender (cf. Criminal Procedure Code, section 27).
On the other hand, the prospective victim of an assault or trespass which is not a forcible
and violent felony is under a duty to retreat, if that is reasonably possible, in order to
avoid the commission of the assault or trespass upon him and is only entitled to resort to
force for that purpose when he is unable to retreat or to retreat further. Consequently, the
availability of retreat is not a factor in determining whether the causative act was
reasonably necessary in order to preventor resist the commission of a crime when the
crime was a treason or a forcible and violent felony, but it is a factor in determining that
question when the crime was an assault or trespass which was not a forcible and violent
felony. That difference between the two forms of homicide can still be of practical
importance, perhaps. (See and compare as to the English law on the subject generally:
Halsbury 3rd edition, Vol. 10 pages 721, 722; Turner's Kenny: Outline of Criminal Law,
pages 111- 114; Stephen: Digest of Criminal Law, 9th edition, pages 251-254 Archbold:
Criminal Practice, etc. 35th edition, pages 991, 999, 1000 paragraphs 2496, 2512, 2513;
R. v. Rose (1884) 15 Cox 540; Zabroni v. R. 1956 R & N. 195 (F.S.C.). As to the
application of the English law on the subject under the Penal Code, see section 18
thereof).

As both justifiable and excusable homicide are now lawful, and as a constituent element
of both murder and manslaughter is that the homicide was unlawful, the onus of proof in
respect of a charge of either crime is upon the prosecution to prove beyond reasonable
doubt that the homicide was not justifiable or excusable. (Chan Kau v. Reginam [1955] 1
All E.R. 266 (P.C.).) The onus does not arise in the abstract, however. Its effect is that,
when, but only when, there is evidence before the court indicating or suggesting as a
reasonable possibility that the homicide was justifiable or excusable, the accused is
entitled to an acquittal on that account unless the tribunal of fact is satisfied beyond
reasonable doubt by the relevant evidence before it, considered as a whole and regardless
of whether such evidence came from prosecution or defence witnesses that the homicide
was not such. (R .v. Lobell [1957] 1 All E.R. 734 (C.C.A.).) That means for practical
purposes that, whenever self-defence is set up on a proper basis in answer to a charge of
murder or manslaughter it is sufficient for the prosecution's case if the relevant evidence
establishes beyond reasonable doubt any of the following negatives, as that means

p56

509
that one of the three positive elements, all of which are necessary to constitute justifiable
or excusable homicide, did not exist:

(a) That the homicide did not occur in the course of the
commission of a crime which was either treason, a forcible and violent felony or an
assault or trespass which was not a felony of the kind last mentioned;
(b) That the accused did not do the act which caused the
homicide in an honest belief that it was necessary to prevent the commission of the crime
in the course of which it was done;
(c) That the doing of the causative act was not reasonably
necessary in order to prevent the commission of the crime in the course of which it was
done, having regard to - the nature of the crime, the circumstances attending its attempted
commission, and the nature of the causative act itself, and, when the crime in the course
of preventing which the causative act was done, was an assault or trespass not amounting
to a forcible and violent felony, the opportunities, if any, which the prospective victim
had to discharge his duty to retreat out of danger, if possible, instead of doing the
causative act.

The accused's second statement to the police, which was in amplification of his first
statement, indicates that all three conditions for rendering the killing justifiable or
excusable existed here. Consequently, unless I am satisfied beyond reasonable doubt that
it was false, and conversely that the evidence of the two principal witnesses for the
Crown is true, the accused must be acquitted completely, since the existence of any one
of the three conditions has not been negatived.

In weighing the credibility of the two principal witnesses for the Crown, I am entitled to
take into account that the accused has elected not to give evidence before this court, and
has thereby rendered himself immune from cross-examination. The adoption of that
course is not evidence against the accused but it does add weight to the evidence of the
two principal Crown witnesses by adding to the probability of its truth if that evidence is
apparently credible. However, I am unable to regard that evidence as being apparently
credible.

[The judgment criticised aspects of the witnesses' evidence and concluded:]

It follows that I am not satisfied that the accused did not stab the deceased in self-
defence, and he will accordingly be found not guilty of both murder and manslaughter on
the charge.

510
KAMBARANGE MPUNDU KAUNDA v THE PEOPLE (1992) S.J. 1 (S.C.)

SUPREME C OURT
SILUNGWE, C.J., GARDNER, A.G. D.C.J., AND SAKALA, J.S.
S.C.Z. JUDGMENT NO.1 OF 1992
19TH FEBRUARY AND 19TH MARCH , 1992.

Flynote

Evidence - Affidavit evidence on a contentious matter - Rule 39(1)

of the Supreme Court of Zambia Rules - Court's power.

Bail - Extenuating circumstances - Whether bail can be granted on appeal to a person

convicted of murder - Order 45 (2) of the Supreme Court Rules - Section 123 of the
Criminal Procedure Code.

511
Criminal Procedure - Coroner's order - Whether it is in conformity with the law.
Criminal Procedure - D.P.P. 's initial decision not to prosecute the appellant - Whether it
was made by a mistake of fact or law on some obscure issue.

Amendment of charge - Necessary when initial charge is defective.

Evidence - Witnesses with an interest to serve - Court's need to warn itself-
Exclusion of danger of false implication.

Witnesses - Proper test for assessing credibility of.

Headnote

The appellant, with a passenger, was driving through Kamanga Compound in Lusaka
around midnight. He drove past a group of people who were walking in the same
direction on the road as he himself was travelling, he did so at speed and stopped
immediately after them. One of the passengers in his car then alighted and fired a
shotgun in the air. The appellant also alighted and fired four shots in the air with a pistol.
He then lowered the aim of his pistol and fired three more shots close over the heads of
the people in the group so that one shot killed the deceased by striking her in the back of
the head. Upon the appellant's arrest, the Director of Public Prosecutions announced that
the appellant would not be prosecuted. However, the coroner at the inquest ruled that the
appellant be prosecuted. The appellant was accordingly prosecuted and convicted of
murder. On appeal it was

Held:

(i) That in view of the D.P.P.'s public statement that the appellant would not be
prosecuted for homicide on the ground of self-defence, the right to prosecute
thereafter was lost for the reasons already given;

(ii) That as the prosecution eye witnesses were relatives or friends of the deceased
and could, therefore, well have had a possible bias against the appellant; and as
they were the subject of the initial complaint by the appellant are having
attacked him and his friends and, therefore, had a possible interest of their own
to serve, failure by the learned trial judge to warn himself and specifically to
deal with this issue was a misdirection;

(iii) That the learned trial judge misdirected himself by applying improper test in his
assessment of the credibility of the prosecution eye witnesses most of whom
were found to have told lies on certain issues including as to the amount of
alcohol they had consumed;

(iv) That the appellant acted in self-defence and was, therefore, not guilty of
murder

Cases cited:

512
(1) Nkumbula and Another v The Attorney-General (1979) Z.R.
267 at page 272
(2) Githunguri v The People Miscellaneous Application of 1985
(Nairobi Law Monthly, October 1987)
(3) Nyirenda v The People (1980) Z.R. 194
(4) Shamwana and other v The People (1985) Z.R 41
(4) R. v Johal and Ram (1972) 56 Cr. App. R. 3
(5) R. v Hall (1968) 52 Cr. App. R. 528
(7) R. v Jones and others (1974) 59 Cr. App. R 120. C.A.
(8) Chimbo and others v The People (1982) Z.R. 20
(9) Haonga and Another v The people (1976) Z.R.200
(10) Palmer v R. (1971) 55 Cr. App. R. 223
(11) Tembo v The People (1972) Z.R. 220

For the Appellant: Mr. Richard Ngenda of Ngenda & Associates

For the State: Major K. M. Kaunda, State Advocate
_________________________________________
Judgment

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

When we heard this appeal on February 19, 1992 we made two rulings and said we
would give our reasons later. We now give those reasons.

In the first application, Mr. Ngenda sought to adduce further evidence in the form of an
affidavit sworn by professor Bernard Henry Knight, a Barrister-at-Law and professor of
forensic pathology, who sought to deal with the pathological and ballistic evidence of the
expert witnesses in this case. Mr. Ngenda argued that the evidence was necessary to
indicate the probable distance of the deceased from the weapon used to fire the shot
which killed her. Mr. Ngenda said that the evidence was not available at the trial because
it had not been prepared until after judgment had been delivered.

Major Kaunda (who is unrelated to the appellant), on behalf of the State, opposed the
application on ground that the defence had every opportunity to produce the evidence
before the end of the trial.

We have examined the record and note that the last day on which Dr. Mahendra
Parakash Garg, a consultant forensic pathologist, gave evidence, on recall, was May 31,
1991. The defence case was closed on July 24, 1991. Thereafter, final submissions were
made on August 14, 1991 and judgment was delivered on

p3

October 14, 1991. There was, therefore, a period of four and half months before delivery
of judgment during which time evidence could have been obtained from an expert
witness to support the appellant's case. No application was made to the trial court to

513
enable such evidence to be presented to the court and no valid explanation was given by
counsel as to why such evidence was not obtained and produced to the High Court.
Professor Knight's affidavit was not sworn until December 23, 1991.

Whilst we appreciate that this Court has power, under rule 39(1) of the Supreme Court of
Zambia Rules, Cap. 52 of the Laws, to hear additional evidence or to direct that
additional evidence shall be taken, no valid argument has been put forward by Mr.
Ngenda as to why the Court could or should accept affidavit evidence on a contentious
matter. As we said in Nkumbula and another v The Attorney-General (1), at p.272, it is
inappropriate for evidence to be taken on affidavit in a controversial matter. Certainly, in
this case, it is provable that the learned State Advocate would have wished to cross-
examine the deponent and, indeed, would have been so entitled. For these reasons, we
refused the application.

The second application was for bail. Mr. Ngenda argued that in view of the fact that the
coroner's order was a nullity and for the other reasons which he put forward, the
amendment made to the charge by the learned trial judge increasing it from manslaughter
to murder was also a nullity. Consequently, the appellant should be treated now as having
been charged only with manslaughter. If treated on this basis, Mr. Ngenda argued, the
Court has power to grant bail and the appellant should accordingly be granted bail.

Another argument advanced by Mr. Ngenda in support of the bail application was that by
necessary implication, murder is now a bail- able offence in view of the amendment to
section 201 of the penal Code, Cap. 146 by Act No. 3 of 1990 under which a person
convicted of murder may now receive a sentence other than capital punishment where
extenuating circumstances exist.

In view of the provisions of rule 45(2) of the Supreme Court Rules, which specifically
provide that the provisions of section 123 of the Criminal Procedure Code, Cap. 160
(hereinafter referred to as the C.P.C.) shall apply, bail cannot be granted in any appeal
against a conviction for murder regardless of whether there are any extenuating
circumstances.

We appreciate the ingenuity of the arguments; but the fact remains that the appellant was
charged with murder, rightly or wrongly, and remains so charged and, in this case,
convicted until a successful appeal, if any. At that stage of the proceedings, and mindful
of the provisions of section 336 of the C.P.C., this Court was bound by the provisions of
section 123(1) of the C.P.C. as read with rule 46(2) of the Supreme Court Rules, CAp. 52
of the Laws. For these reasons, the second application was also refused.

We now deal with the main appeal.

This appeal is against conviction and sentence. The appellant, who was originally
charged with manslaughter, was convicted of murder, the learned trial judge having
amended the charge at the close of the case for the prosecution.

514
p4

The facts of this case were that the appellant was driving a Toyota Corolla car along a
dirt road in Kamanga compound, Lusaka, after midnight on September 3, 1989.

According to the prosecution evidence, when the appellant drove past a group of people
who were walking in the same direction on the road as he himself was travelling, he did
so at speed and stopped immediately after them. One of the passengers in his car then
alighted and fired a shotgun in the air. The appellant also alighted and fired four shots in
the air with a pistol. He then lowered the aim of his pistol and fired three more shots
close over the heads of the people in the group so that one shot killed the deceased by
striking her in the back of the head.

The defence story was that the appellant, his fiancee and DW2 were on their return
journey after having taken his fiancee's sister to her home in Chamba Valley, beyond
Kamanga compound. This was after a party organised by the appellant's elder sister in
woodlands which they had attended and at which neither the appellant, a commercial
pilot, now DW2, a Moslem, had taken any alcohol. There was evidence that both the
appellant and DW2 had been manning the gates at the party.

The evidence of the appellant and his passenger, Raffick Mohamed Ebrahim Mulla, was
that when they saw a group of people on the road, the appellant, who was driving, slowed
down to 25 Kilometres per hour and then sounded the horn of his car twice. The people
in group were slow to give way and the appellant passed them on the extreme left; while
he was doing so, there was bang on the rear right passenger window and another on the
rear windscreen. This caused the appellant to swerve the car to the left, facing Kamanga
compound. The car came to a stop because there was a slight embankment. There was
then a group behind the car and a group in front of the car both of which were advancing
towards it.

DW2, Rafick Mulla, got out of the passenger side of the car and fired a shot in the air
with a shotgun. The appellant also left the car and fired four shots into the air. Both
groups continued to advance towards them and the appellant, thinking that they were in
great danger, lowered his aim and fired three more shots close above the heads of the
people with the intention that the noise of the bullets would act as a further deterrent.
The groups then dispersed and the appellant and DW2 arrested the nearest person in the
crowd; this person was PW11, Andrew Kaonga. They then took Andrew Kaonga to a
police station and reported to the police that they had been in danger and had arrested the
man as one of the people who had attacked them.

The police went to the scene with the appellant and DW2. They collected the body of the
deceased and took it to the University Teaching Hospital where she was pronounced
dead.

The post-mortem report indicated that the deceased had died as a result of a bullet wound
in the back of the head.

515
Prosecution witnesses gave evidence that they, or most of them had been attending a
farewell for one of their number and had consumed no more than one crate of beer
among about sixteen of them from about 16.00 hours to shortly before the incident.

p5

The public analyst's report on the deceased who was one of the members of the party was
that the deceased had consumed the equivalent of nine and a half (9.5) bottles of Mosi
beer or 526 mililitres (that is over two thirds of s standard 750 mililite bottle) of spirits.

In his judgment, the learned trial judge believed the prosecution witnesses who said that
they had taken no aggressive action towards the car or its occupants and disbelieved the
appellant and DW2. The learned trial judge accepted the evidence that the five shots had
been fired in the air but held that the next shots fired by the appellant were fired when he
knew that they would probably kill someone. So, in the absence of any danger to himself
or his friends, he was guilty of murder.

Prior to the commencement of criminal proceedings in this case, tow events worth noting
occurred. The first one was that a short while after the deceased's death, the Director of
Public Prosecutions (hereinafter referred to as the D.P.P.), on examining a police docket,
decided - and made his decision known to the public through a press statement - that the
appellant would not be prosecuted for homicide on the ground of self-defence; the police
docket was then closed. Not long thereafter, that the D.P.P. died of natural causes.

The second event was that when an inquest was subsequently held, the coroner, on
consideration of the evidence before himordered that the appellant and his friend, Rafick
Mulla, should be charged with the murder of the deceased.

Consequently, on August 9, 1990, the police arrested the appellant and Raffick Mulla and
jointly charged them with murder. The appellant and his co-accused appeared before a
magistrate's court and were summarily committed to the High Court for trial on the
charge of murder.

However, a new DPP filed information in the High Court against the two men containing
one count of manslaughter only. During the initial stages of the proceedings, the charge
against Raffick Mulla was dropped. As we have already indicated, the learned trial judge
enhanced the charge to murder at the close of the case for the prosecution; put the
appellant on his defence on that charge; and subsequently convicted him of it.

Mr. Ngenda prosecuted the appeal on a number of grounds. The first of those grounds
wad divided into two parts the first of which was that the appellant's rights were violated
because, at the end of the inquest proceedings in this case, the coroner purported to order
that the appellant be charged with murder. He argued that the D.P.P is empowered under
Article 56 of the (current) Third Republican Constitution) to institute, undertake, take
over or discontinue any criminal proceedings against any person before any court, other

516
than a court martial. he went on to say that the powers are vested in the D.P.P alone to
the exclusion of any person or authority, subject to delegation to, but not to the direction
or control of, any other person or authority.

Mr. Ngenda contended that the D.P.P.'s decision to prosecute the appellant for
manslaughter was prompted by the coroner's order; and that as the D.P.P. was
constitutionally not subject to the direction or control of any person or authority, the
coroner's order constituted a direction to the D.P.P. and was, therefore, a nullity.

p6

A coroner is under a duty, in terms of section 28(1)(c) of the Inquests Act, Cap. 216 to
name a person or persons, if any, whom he considers should be charged with any of the
specified homicide offences, including murder. When a coroner makes an order in this
regard, the order is directed, not to the D.P.P., but to the police authorities who should
take the initial steps to charge the person or persons named with any of the specified
offences. Thereafter, the D.P.P. has a discretion to prosecute the person or persons
named by the coroner for the offence mentioned or for any other offence disclosed, or not
to prosecute at all.

As the coroner's order was neither directed to, nor binding on, the D.P.P., it was not a
nullity; rather, it was in conformity with the law.

The second part of the first ground was that where, as in this case, the office of the D.P.P.
makes a public pronouncement that, upon legal considerations, it is not going to
prosecute an accused person, it cannot thereafter turn around and prosecute such person
in the absence of fresh evidence, otherwise the prosecution would be unjust, an abuse of
the process of the court, oppressive and vexatious. In support of his argument, he
referred us to the Kenyan case of Githunguri v The Republic (2) to which we shall shortly
return.

But Major Kaunda argued, on behalf of the respondent, that there was nothing in law or
in practice to prevent the D.P.P from reviewing his earlier decision not to prosecute an
accused person.

We take the view that, the D.P.P. having said publicly, as in this case, that the appellant
would not be prosecuted on the ground that he had acted in self-defence and was,
therefore, not guilty of any offence, could not reopen the case without showing that there
was fresh evidence which would have affected his earlier or first decision in the matter,
otherwise reopening the prosecution would be an abuse of the process of the court,
oppressive and vexatious. In this particular case, the learned state advocate was not able
to point to any fresh evidence except to say generally that there had been an inquest since
the first decision. As a matter of fact, the case record does not disclose any fresh
evidence.

517
Coming to the Githunguri case (2) which was cited by Mr Ngenda the facts there were
that the Attorney-General in Kenya (herinafter referred to as the A.G.), whose powers are
apparently equivalent to those of the D.P.P. in Zambia, told the accused person - and later
made a statement in Parliment - that he would not be prosecuted for the alleged exchange
control offences. The appellant had allegedly committed the offences some nine years
previously and, five years later, the A.G. made the statement referred to above. One year
thereafter, four of the original twenty charges were resurrected by a new A.G. and
Division of the High Court of Kenya granted an order of prohibition preventing the
prosecution from continuing. In the course of delivering the judgment of the court,
Acting Chief Justice Madan said:

"We are of the opinion that two indefeasible reasons make it imperative that this
application must succeed.First as a consequence of what had transpired and also being led
to believe that there would be no prosecution the appellant may well have destroyed or
lost the evidence in his favour. Secondly, in the absence of any fresh evidence the right

p7

to change the decision to prosecute had been lost in this case,

the appellant having been publicly informed that he will not be prosecuted and property
restored to him. It is for these reasons that the appellant will not a square deal as
explained and envisaged in section 77(1) of the Constitution. This prosecution will
therefore be an abuse of the process of the court, oppressive and vexatious.

If we thought, which we do not, that the applicant by being

prosecuted is not being deprived of the protection of any of the fundamental rights given
by section 7791) of the Constitution, we are firmly of the opinion that in that event we
ought to invoke our inherent powers to prevent the prosecution in the public interest
because otherwise it would similarly be an abuse of the process of the court, oppressive
and vexatious. It follows that we are of the opinion that the application must succeed in
either event."

We agree with the reasoning of the learned Acting Chief Justice in the Githunguri case
(2). We would respectfully add that there might Be some other reasons which could alter
the circumstances in which the decision not to prosecute might not be lost, for instance, if
a mistake of fact of law on some obscure issue had been made in the first instance. Such
circumstances might render it necessary for a prosecution to take place in roder for justice
to be done. There was no evidence let to show that the initial decision by the D.P.P. not to
prosecute had been made by a mistake of fact or law on some obscure issue.

There is here no evidence that any documentary or other evidence was either lost or
destroyed. But, in order to come within the Githunguri case (2), it is necessary in every
case for the prosecution to show that fresh evidence exists to justify the reopening of the
prosecution. As we have said in this case, there was no such fresh evidence.

518
For the reasons given, we would hold that the D.P.P.'s right to reopen the prosecution in
this case was lost.

Mr. Ngenda then argued the second part of the first ground of appeal. He submitted that
the decision by the learned trial judge to upgrade the charge from manslaughter to
murder at the close of the case for the prosecution was a fundamental error in both law
and fact. He contended that, by his action, the learned trial judge was seen to be playing
the role of prosecutor to the clear detriment of the appellant; and that the purported
substitution of the most serious charge known to the law, with the attendant irreversible
penalty, could not be justified under section 27392) of the C.PC. It was further
contended that the learned trial judge should not have applied section 272(2) of the
C.P.C. on the ground that the section should be applied only when the original charge is
defective. In this case Mr.. Ngenda argued that the charge of manslaughter was not
defective and, consequently, that the learned trial judge had no power to apply the
section.

For his part, the learned State Advocate submitted that the learned trial judge was in order
to amend the charge from manslaughter to murder. he argued that section 273(2) of the
C.PC. empowers the court to amend a defective information at any stage of the
proceedings; and that amendment can mean upgrading or

p8

reducing a charge. He cited the case of Nyirenda v The People (3) where this Court held
that where the facts disclose a major offence, it is improper for a court to accept a plea to
a lesser offence. The learned State Advocate pointed out that courts in England have
given section 5(1) of the Indictments Act 1915, which is equivalent to section 273(2) or
the C.P.C., a wider interpretation; and that, in the present case, the information was
defective because it failed to charge the offence disclosed by the depositions.

In responding to Mr. Ngenda's argument, that by initiating the amendment on his own
motion the learned trial judge assumed the role of prosecutor, Major Kaunda submitted
that, on the authority of Shamwana and Others v The People (4), a court can amend a
defective charge on its own motion.

The provisions for section 272(2) of the C.P.C. are in these terms:

"273(2) Where, before a trial upon information or at any stage

such trial, it appears to the court that the information is defective, the court shall make
such order for the amendment of the information as the court thinks necessary to meet the
circumstances of the case, unless, having regard to the merits of the case, the required
amendments cannot be made without injustice. All such amendments shall be made upon
such terms as to the court shall seem just."

The question may be asked as to what is meant by a defective information or charge. As

section 273(2) of the C.P.C. is a replica of section 5(1) of the Indictments Act 1915 of

519
England, the English law that has evolved on the matter is of interest and relevance to
Zambia. The following extract is taken from note 3 of paragraph 937 of Halsbury's Laws
of England, Fourth Edition Reissue Vol. 11(2):

"The indictments Act 1915 s.591) (as amended by the

prosecution of Offences Act 1985 s. 31(6), Sch.2 imposes on the trial judge a duty to
remedy a defective indictment if the necessary amendment may be made without
injustice. ... An Indictment is defective if it charge offences which are not disclosed by
the deposition and fails to charge an offence which is so disclosed."

In paragraph 1-66 of Archbold Criminal pleading Evidence and practice Forty-Third

Edition Vol. 1, we find the following:

"When an amendment may be made:

Since the passing of the Indictments Act 1915, there have

been a number of decisions as to the circumstances in which it is properfor the judge to
order an amendment of the indictment. The appellant courts have shown an increasing
willingness to allow amendments of substance to be made.....

The present position is largely set out in the considered

judgement of the Court of Appeal in R v Johal and Ram (5), where reference is made to
several of the earlier authorities. It is submitted that the present position as to the effect
of the Indictments Act 1915 s.5(1) is as follows: (the word 'indictment' includes 'count'
whee thee is more than one count). 'indictment' includes 'count' whee thee is more than
one count).

p9

(a) An indictment is ... defective not only when it is bad on the

face of it (e.g. because of duplicity or because the particulars disclose no offence), but
also:

(i) when it does not accord with the evidence before the
committing magistrates either because of inaccuracies or deficiencies in teh indictment or
because the indictment charges offences not disclosed in that evidence or fails to charge
an offence which is disclosed therein;

(ii) when for such reasons it does not accord with the evidence
given at the trial: R v Hall (60; R v Johal and Ram(5);

(iii) when the evidence led in support of the indictment discloses

more than one offence: R v Jones and others(7)

(b) The court has power to order an amendment which involves

the substitution of a different offence for that originally charged in the indictment or even

520
in the inclusion of an additional count for an offence not previously charged: R v Johal
and Ram (5);

(c) An amendment of any kind may be made at any stage of the

trial provided that, having regard to the case and the power of the court to postpone the
trial, the amendment can be made without injustice....."

The foregoing references are manifestation of good law not only in England but also in
Zambia. Accoedingly, a court has power, either on its own motion or at the isntance of
either the prosecution or the defence, to amend an indictment by, for instance, upgrading
the offence originally charged substituting a different offence for that originally charged;
or even including an additional court or an offence not previously charged. We wish to
stress, however, that it is advisable that an amendment should be made as early as
possible during teh course of a trial as a late amendment may, in some cases, cause
injustice to an accused person. To quote the Court of Appeal in
R. v Johal and Ram (5) at page 354:

"The longer the interval between arraignment and

amendment, the more likely it is that injustice will be caused, and in every case in which
amendment is sought, it is essential to consider with great care whether the accused
person will be prejudiced thereby."

Although the amendment was made at the "case ot answer/no case to answer" stage, we
consider that, in the cirucumstances of this case no injustice as thereby caused to the
appellant, especially that a proper procedure as regards the appellant's rights was
observed at the time by the learned trial judge; and the appellant;s defence (i.e., self
defence) was not prejudiced by the amendment.

In the view that we take in the present case, and for the reasons stated above, the learned
trial judge's decision to amend the information by upgrading the charge from
manslaughter to murder at the close of the case for the prosecution wa not a misdirection.

A further argument was advanced by Mr. Ngenda on the second ground. The argument
was that, having upgraded the charge, the proper course for the learned trial judge to take
was to disqualify himself from continuing with the trial

p10

and to order a retial before anothr judge since to continuewith the case, as he did, gave
the impression that he ahd made up his mid to convict the appellant before he could hear
the case for the defence.

On the contrary, we are of the view that the finding in this case, by the learned trial judge,
that the evidence before him warranted a charge of murder rather than manslaughter was
no different from a finding in any case that there is a case to answer. Such a finding does

521
not in any way mean that the trial judge has already made up his mind to convict the
accused before he could hear his side of the story. This argument is misconceived.

The next (i.e third) ground of appeal was that the learned trial judge misdirected himself
in law and in fact with regard to the assessment of the credibility of the prosecution eye
witnesses, some of whose evidence was unsatisfactory.

Firstly, it was argued that all the prosecution eye witnesses were either relatives orfriends
of the deceased and that, as such, they were witnesses with a possible interest of their
own to serve. He referred to the case of Chimbo and Others v The people (8) where this
Court held that a court, faced with the evidence of an accomplice or s suspect witness,
should warn itself against the danger of false implication of the accused and go further to
ensure that that danger has been excluded.

Although the above aspect of the third ground of appeal was equally argued in the court
below, it was clearly not dealt with by the learned trial judge, In our opinion, it is
feasible for relatives or friends of a victim to have a possible bias against an accused
person. We would agree with Mr. Ngenda that the prosecution eye witnesses in this case
were friends or relatives of the deceased and, therefore, could well have had a possible
bias against the appellant, and as they, and in particular PW11, Andrwe Kaonga, were
themselves the subject of the initial complaint by the appellant as having attacked him
and his friends, there was a possible interest of their own to serve. Failure by the learned
trial judge to warn himself and specifically to deal with this issue was a misdirection.

The second aspect of third ground is an attack on the learned trial judge's assessment of
the credibility of the prosecution eye witnesses. It was contended that the learned trial
judge found as fact that principal eye witnesses gave untruthful accounts relating to 9a)
the time when the incident is alleged to have occurred; and (b) the amount of alcohol
taken by them on the night in question. These, Mr. Ngenda said, were material points
and that their evidence on other issues ought not to have been believed. He cited Haonga
and Others v The People (() at p. 203 as a case in point.

In his submission, Major Kaunda said on behalf of the respondent that the learned trial
judge wasin order to believe the evidence of the prosecution eye witnesses on some
material points and felt that Haonga (9) was supportive of the respondent's case.

In his hudgment, the learned trial judge accepted the principle set out by this court in
Haong (9), at p.207, that:

"Where a witness had been found to be untruthful on a material point, the weight to be
attached to the reminder of his evidence is reduced; although, therefore, it does not
follow that a lie on a material point

p11

522
destroys the credibility of the witness on other points (if the evidence on other pounts can
stand alone) nevertheless there must be very good reasons for accepting the evidence of
such a witness on an issue identical to that on which eh has been found to be untruthful."

The learned trial judge than went on to say that he had analysed the evidence of some of
the prosecution witnesses and made specific findings on certain points. He said that
those findings:-

"revealed two things (1) that those witnesses did tell a lot of
truthful evidence individually and severally and (2) that most of them also told some
untruthful evidence. In the light ofthis, I was not able to persuaded by the defence
counsel's submissions that the story of those witnesses was manifestly unrealiable, and
thus adversely affected their credibility in this case on all the points. Yes thee were
certain issues in which most ofthem have been desblieved. But there were equally other
issues on which they gave creditable testimonies, which either established common
cause facts or were agreed to by teh accused person and his friend."

The learned trial judge did not deal with the evidence which was in dispute, i.e., where
there was no common cause. It is precisely with regard to that evidence where the
prosecution witnesses were in conflict with the appellant and his eye witness, Raffic
Mulla, that it was necessary for the learned trial judge to indicate why he preferred the
evidence of the prosecution witnesses who had been found to have given untruthful
evidence on certain issues.

The learned trial judge did, however, make adverse findings about the credibility of the
appellant and DW2 (Raffick Mulla) whom he specifically found to be liars. For
example, he found the appellant to be a liar because of his testimony that the could not
say whether people in the groups were armed or not. In fact the appellant said that it was
dark so he could not see clearly; that the incident happened so quickly that he could not
tell whether the people were carrying any weapons; and that, in any event, it was not
necessary for the people to have weapons in order for them to threaten to attack. This
evidence by the appellant could not possibly be used to form a conclusion that the
appellant must be lying on this issue. He found both the appellant and DW2 to be liars
because they differed as to whether there was one or two bangs when DW2 was quit
prepared to concede that there may have been more than one bang. The learned trial
judge criticised the memory of the appellant and DW2 as to the number of bangs saying
that these should have been clear in their minds because, as he put it; "The period
September, 1989 to May, 1991 (i.e. about one year and nine months) when the two
testified in this court is too short for them to have forgotten what really happened on the
night in question." It seems to us that the learned trial judge's comments as to the
number of bangs were unfair to the appellant not only in view of the long (not short)
period of time that had elapsed since the incident took place but more importantly
because DW2 was willing to concede that there may have been more than one bang.

523
As to whether the appellant's car was "stuck" on an embankment soon after he ahd gone
past the group, the learned trial judge said that he did not believe that story on the ground
that had there been such an embankment at the scene of the

p12

shooting, he would have expected the appellant and DW2 to have been able to identify
that spot because of that embankment when they took the police to the scene on
September 4, 1989. Again, this was an unfair comment since no issue had been made as
to whether there was an embankment or not; in fact, the appellant was not even cross-
examined on the matter. In his testimony, the appellant referred to the embankment as a
slight one. There was no suggestion by the appellant that the embankment was so huge
as to be readily recognisable on a dirt road.

The learned trial judge misdirected himself when he held that Andrew Kaonga's evidence
(i.e. PW11's evidence) that he heard the appellant tell the police that someone had
humped on the car was unchallenged. Mr. Ngenda pointed out to us that PW11 had been
cross-examined on this issue and had been specifically asked why any such reference was
omitted from the reports of the police offices. His response was that maybe because the
appellant was the president's son or may be the police forgot it. The learned trial judge
did not resolve the question as to who was telling the truth on the matter and assumed
that because of the alleged lack of challenge to PW11's evidence that the appellant and
his defence witness had told lies to the police about the alleged attack.

The learned trial judge further found that the appellant had told Assistant Commissioner
of Police Mr. Emmanuel Mutale (PW9) at State Lodge that he and his friends had been
attacked and were lucky to be alive, was a lie because there was not even a resemblance
of an attack on them. This was an unfair finding against the credibility or the appellant in
that his whole defence was that he ahd his friends were under tret from two groups of
advancing people who had struck his car.

In deciding the likelihood whether or not the appellant and his friends wee threatened, the
learned trial judge found that on the evidence, the locality where they were that night was
a peaceful one. This is what he said:

"In the absence of evidence on this point, I am not free to

hold that the people in Kamanga compund are stoner of motorists. On the contrary, I am
obliged to hold that the residents of that compound are law abiding citizens. So there was
no evidence to show that the sort of compound the accused person found himself in on
the night in question was anthing than a peaceful one. i am not able to take judicial
notice that the compound is notorious for stoning motorists because it has not acquired
such a reputation. This being the case, I find and hold that there was nothing to have
made the accused person and his group apprehensive of the fact that they were in
Kamanga compound that night."

524
Although one of the passengers in the car asked the appellant to close the window on the
appellant's side because people in that area were in the habit of throwing stones at otorists
at night, which evidence was admissible as to the fact that the statement was made, the
appellant did not rely on the notoriety of the area to support his statement that he feared
that his life and the lives of his companions were in danger. He relied on the behaviour
of the two groups of people whom they encountered. The fact that the learned trial judge
said that there was no evidence to show that the sort of compound the accused person

p13

and his friends found themselves in was any thing other than a peacful one was an
unjustified finding against the acceptance of everythign that the appellant and his witness
said.

The learned trial judge fialed to give resons for preferring the evidence ofthe prosecution
witnesses most of whom he found to have given untruthful evidence on certain issues.
Indeed, most of the prosecution witnesses told lies as to the quantity of alcohol they has
consumed individually and severally.

There was one matter with which the learned trial judge dealt at the end of his judgment
and that was with regard to whether or not the appellant and his wirnesses had putPW11
into the boot of his car in order to take him to the police station whee they laid their
complaint. In this respect, the learned trial judge noted that DW2 had said that when they
arrived at the police station, PW11 appeared to be drunk. PW11, however, told the court
that he did not drink alcohol and, as the learned trial judge correctly ponited out, his
evidence in this respect was notshaken in cross-examination. The learned trial judge
deduced from thsithat PW11's appearance of being drunk must have been caused by
having been putin the boot of the car. None of the witnesses was aksed as to whether
PW11's appearance of being drunk might have been caused by his confirnement in the
boot of the car. But if the learned trial judge's deduction of the cause of PW11's
appearance was correct, we would note that the defence evidence in this respect was
aboutsomething which took place after the main ancident and a discrepancy here would
not go to the root of the matter.

In the light of the misdirections to which we have referred, the tests of credibility applied
by the learned trial judge were not the proper ones. Had he applied the proper tests he
might well have come to a different conclusion on the issue of credibility in so far as this
relates to the prosecution witnesses.

We are satisfied that the learned trial judge misdirected himself as to the assessment of
the credibility of the prosecution eye witnesses most of whom were found to have told
lies on certain issues, let alone as to the amount of alcohol that they had consumed.

We now come to deal with what we consider to be the final ground of appeal. It was
submitted here that the learned trial judge misdirected himself by holding that the
appellant had not acted in self-defence. Mr. Ngenda aurged usthat the test to apply is not

525
only objective but also subjective as the accused's state ofmind at the material time is a
relevant fact and, therefore, worthy of consideration. He further submitted that courts
must be hesitant in applying over fine tests to actions taken and weapons used in the heat
of the moment. In support ofhis argument, he cited the English case of Palmer v R (10)
and the Zambian case of Tembo v The People (1). In Palmer (10). Lord Morris of Borth-
y-Fest said at pp.242 and 243:

"It isboth good law and good sense that a man who is attacked may defend himself. It
isboth good law and good sense that he may do, butmay only do, what is reasonably
necessary. But everthign will depend upon the particular facts and circumstances.... If the
moment is one fo crisis for someone in immenent danger, he may ahve to avert the
danger by some instant reaction.... If there has been attck sothat

p14

defence is reasonably necessary, it will be recognised that a peraon defending himself

cannot weight to anicelty the exact measure of hisnecessary defensive action. If a jury
thought that in a moment of unexpected anguish a person attcked had only done what he
honestly and instinctively thought was necessary, that would be most potent evidence
that only reasonable defensive action ahd been taken... If the jury consider that an
accused acted in self-defence or if the jury are in doubt as to thsi, then they will exquit."

And in the Tembo (11), the then Court of Appeal of Zambia said (per Baron J.P. as he
then was) at p.227:

"The courts in the common law countries have always been

very slow to apply over fine tests to ations taken and weapons used in the heat of the
moment."

In considering this ground, we agree with the authorities cited by Mr. Ngenda and the
learned trial judge. The essence of the case is whether or not the appellant had an honest
and reasonable belief that lives of himself and his friends were in such danger that it was
necessary to fire warning shots close to the heads of the people on the road.

According to the evidence of the appellant and his witness, the car in which they were
travelling was struck once or twice on the window and rar widscreen by members of the
group which they passe. As a result, the appellant swerved the car to one side so that the
car stopped. At that time, the appellant and DW2 saidthat there was a group of people in
front and another group behind them both of which wre advancing towards them.
Thinking that the groups intended to attack them DW2 fired a warning shot with shotgun
into the air and the appellant fired four shot with pistal into the air. Both witnesses said
that this did not stop either group from advancing. In fact, one prosecution eye witness,
Jessie Mwanza (the deceased's elder sister), testified that some of her friends said that
blanks were being used. The appellant then thought it was necessary to stop the people
from advancing to fire closer to their heads sothat they could hear the whine or whistling

526
of the bullets which would act as a more effective deterrent. After the firing of these latter
shots, the groups did in fact disperse.

On the evidence before the trial court, it is difficult to believe that those two sober men,
with a female passenger, stoppedtheir car after passing a group of people for no reason at
all and proceeded, again for no reason at all, to fire warning shots in the air before firing
some shots dangerously low near the heads of the people. The only possible reason could
have been that the men were out to make mischief and were showing off with their
firearms. But, having regard to their sobriety, there is no basis for entertaining any such
suggestion. In contract, however, there was no evidence that any member of the crowd of
people was known to the appellant and DW2 and, therefore, the appellant could have had
no possible reason for any personal animosity towards anyone there, while at least some
members in the crowd had consumed a great deal of alcohol and some of them, in
particular PW11 who was subsequently apprehended by the appellant and DW2, and
advanced very close to the appellant and his friends with the result that they were in fear
of their lives.

p15

In our view, the situation of the appellant was that it was reasonable, after the blows
delivered to the car and after seeing the two groups continue to advance towards him,
despite the warning shots that were fired, to be in fear of his life and the lives of his
friends, especially that some, including PW11, were very close to him. In those
circumstances, it was reason-able for him to lower his aim with intent to frighten the
oncoming people by the sound of the bullets despite the danger to those people of ding
so. Is seems to us that there was no good reason for the learned trial judge to reject the
version of events as given by the appellant and SW2. The defence account by two sober
men as to what happened at the material time should have been accepted or at least the
appellant and his witness should have been given the benefit of doubt as against the
version of the prosecution eye witnesses some for whom were shown to have been lying
in their evidence.

On the basis of what we have said above, the following findings clearly emerge:

(a) that, inview of the D.P.P.'s public statement that the appellant
would not be prosecuted for homocide on the ground of self-defence, the right to
prosecute thereafter was lost for the reasons already given;
(b) that as the prosecution eye witnesses were relatives or friends
of the deceased and could, therefore, well have had a possible bias against the appellant;
and as they were the subject of the initial complaint by the appellant are having attacked
him and his friends and, therefore, had a possible interest of their own to serve, failure by
the learned trial judge to warn himself and specifically to deal with this issue was a
misdirection;
(c) that the learned trial judge misdirected himslef by applying
improper test in his assessment of the credibility of the prosecution eye witnesses mostof

527
whom were found to have told lies on certain issues including as to the amount of alcohol
they had consumed; and
(d) that the appellant acted in self-defence and was, therefore, not
quilty of murder.

The appeal is allowed, the conviction is quashed and the sentence is set aside. The
appellant stands acquitted.

Appellant Acquitted

528