regina chiluba v the people

8/8/2019 Regina Chiluba v The People

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IN THE HIGH COURT FOR ZAMBIA HP/ 82/ 2009HOLDEN AT LUSAKA(CRIMI NAL JURISDICTION)

BETWEEN:

REGINA CHIFUNDA CHILUBA Appellant

V

THE PEOPLE Responden t

Coram : E. M. Hamaundu, J, C. K. Mak ungu, J andE. M. Sikazwe, J

For the appellant : Mr R.M. Simeza , Messr s Simeza, Sangw a & Associates

For the respondent : Mrs R Khuzwayo, Deputy Chief State Advocate & MrS. Simw inga, State Advocate

JUDGMENT

The appellant was charged before the subordinate court of the first

class at Lusaka with five counts of being in possession of property

reasonably suspected of having been stolen or unlawfully obtained

and one count of receiving property knowing or having reason to

believe that it had been feloniously stolen or obtained.

In the first count, the appellant was alleged to have been in

possession of property known as Stand No. NDO/14, Ndola, which


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she was alleged to have bought from money which was reasonably

suspected of having been stolen or unlawfully obtained. In the

second, count the appellant was alleged to have been in possessionof property known as Stand No. KIT/643, Kitwe, which she was

alleged to have bought from money which was reasonably suspected

of having been stolen or unlawfully obtained. In the third count, the

appellant was alleged to have been in possession of property known

as Stand No. KIT/645, Kitwe, which she was alleged to have bought

from money reasonably suspected of having been stolen or

unlawfully obtained. In the fourth count, the appellant was alleged

to have been in possession of a motor vehicle which was reasonablysuspected of having been stolen or unlawfully obtained. In the fifth

count, the appellant was alleged to have received from Dr Fredrick

Jacob Titus Chiluba a Toshiba television set knowing or having

reason to believe the same to have been feloniously stolen or

obtained. In the sixth count, the appellant was alleged to have been

in possession of a sum of K474 million cash which was reasonably

suspected to have been stolen or unlawfully obtained.

The prosecutions evidence before the court below was, essentially,

as follows: In or around the month of September, 2002, the Task

Force on corruption received information pertaining to property that

the appellant was said to have owned. A team of officers was

constituted and initially led by Prosecution witness number two.

They obtained warrants to search the homes of the appellant and

her relatives. The searches resulted in the seizure, among otherthings, of a television set and its import documents, both of which

were in the possession of the appellant. The search, also, resulted

in the seizure of a motor vehicle, an Isuzu vannette which was

driven by the appellants brother. In the course of the

investigations, warrants were issued for the purpose of conducting

further searches of bank accounts belonging to the appellants and

her businesses. The team also went to identify one property in


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Ndola known as Ado house and two properties in Kitwe known as

Stand numbers KIT 643 and KIT 645. The team, then, started

interviewing and obtaining statements from other people withrespect to the transactions on the said properties and the television

set. The team found that the appellant had purchased the property

in Ndola at US$80,000. They found, also, that, of the two properties

in Kitwe, one was bought by the appellant at US$60,000 while she

bought the other one at US$48,000. The team, further, investigated

the importation documents for the television set and found that it

was imported by State House. The team interviewed the appellant,

who explained that she acquired the sum of US$60,000, which sheused to purchase Plot KIT 645 as a loan from Mr B.Y. Mwila. The

appellant also explained that the money which she used to buy the

other two properties and also the money which was found in her

account were raised from her businesses. The appellant, also,

explained that she bought the motor vehicle from money raised

from her businesses while she got the television set as a gift from

Dr Chiluba. The team conducted further investigations into the

appellants businesses and found that not only were the UnitedStates dollar transactions not reflected in the business or personal

accounts of the appellant but that the income from such businesses

fell far below the value of the United States dollar transactions. The

team, then, charged the appellant for the subject offences.

Before the court below, the appellants explanation, given through

her testimony and those of four witnesses, was that, other than thebusinesses which were governed by contracts, she also ran cash

businesses on the side. The money from these cash businesses was

usually kept at home and converted into foreign exchange for re-

investment into the businesses or for purchase of property, such as

in this case. The explanation went on to state that the cash money

that was found in her Kwacha account also comprised of money

realized from the sale of her businesses when she divorced with her


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former husband. The explanation also went further to state that Dr

Chiluba gave the appellant some money to go and pay for a

television set, which was her gift from Dr Chiluba.

On that evidence, the court below found that there was no dispute

that the appellant did make payment for the three properties,

namely KIT 643, KIT 645 and NDO 14, in the following amounts

respectively, US$48,000, US$60,000 and US$80,000. With this

finding, the court deduced that upon payment of the price for

properties KIT 643 and KIT 645, certain rights accrued to theappellant which entitled her to the control and possession of the

two properties. As for the property NDO 14, the court deduced that

since the money was not given to Lilo Investments Limited as a loan

and since the appellant was the companys principal director, then

she had possession of the property.

The court, further, found that the possession by the appellant of themotor vehicle and the sum of K474million cash, the subjects of

counts 4 and 6 respectively were not in dispute. The court also

found that the appellant had been in possession of the cash that

was used to pay for the properties KIT 643, KIT 645 and NDO 14.

Having considered, briefly, the ingredients which the prosecution

must prove in the offence charged in respect of the said propertiesand the cash before the appellant could be called upon to give an

explanation, the court held that a reasonable suspicion that the

said property was stolen or unlawfully obtained was established

when the prosecution closed their case and the appellant was put

on her defence.


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Upon analyzing the appellants explanation in her defence, the

court below made the following observations; (i) that the payments

that the appellant made for the properties KIT 643, KIT 645 andNDO 14 were high value payments. Such transactions should have

been conducted through the bank system (ii) that the appellant

failed to produce books to show that, apart from the appellants

main businesses, which ran most of its transactions through the

bank system, there existed even a bigger empire which was

responsible for financing purchases such as the acquisition of plot

KIT 643. The proposition that the cash business, albeit being a side

one, was more lucrative than the main business defied logic (iii)while it was appreciated that the appellants only burden at law was

to give an explanation that might reasonably be true, such story

must not be riddled by contradictions and open defiance of logic

and the evidence on the ground. Secondly, a story seeking to

exonerate one from allegations involving huge sums of money

cannot be explained away in a casual manner which leaves more

questions than answers and clearly shows that the defence is

unwilling to produce vital evidence which appears to be in theircontrol and custody. Therefore, the explanations given by the

appellants as regards the source of the US$48,000 and the

US$80,000 were unsatisfactory (iv) As regards the sum of

US$60,000 for stand No. KIT 645, that the appellant lied to the

investigating officers that she had documentation for the loan that

she obtained from Mr. B.Y. Mwila because she not only failed to give

the officers those documents but also changed her story in court

and stated that there was no documentation involved in that loan. Therefore, the explanation regarding the source of US$60,000 for

the purchase of KIT 645 was unsatisfactory (v) As regards the sum

of K474million cash, that the appellants kwacha account was

generally inactive. The account only became active between April,

2001 and November, 2001, when the appellant started making huge

deposits of not less than K20million. Because the appellants cash

based businesses could not generate such amount of money, the


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appellants explanation was unsatisfactory (vi) As regards the motor

vehicle, its records and previous owners were traceable. There was

nothing irregular or illegal about the motor vehicle. Therefore therewas no basis for the suspicion regarding the motor vehicle. (vii) As

regards the television set, the import documents showed State

House as being the importer. The documents consigning the

television set did not bear the names of Dr. Chiluba. The courts

conclusion was that when the television arrived in the country, it

arrived as an item imported by State House and was cleared by

State House Staff. It was later transmitted to the appellants house

in Ndola with the accompanying documents. Therefore, theappellants pleas of ignorance of the documents could not be

believed. The court found that the television was imported by State

House and given to the appellant on the directives of the then

President Dr Chiluba. According to the court, that act amounted to

theft. The appellant knew that she was not entitled to retain

government property.

The court then convicted the appellant for being in possession of

stand NDO 14, stand KIT 643, and stand KIT 645 and the sum of

K474 million cash. The court also convicted the appellant for

receiving the television set. The court, however, acquitted the

appellant on the offence of being in possession of the motor vehicle.

The court sentenced the appellant to 2 years on each of thecounts relating to possession of property. The court also sentenced

the appellant to 3 years for receiving the television set,.

The appellant appealed. The basis of the appellants appeal was that

the court below erred both in law and fact when it held as follows;


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

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

unlawfully obtained

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

unsatisfactory

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

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

(vi) That the appellants explanation as to her possession of thetelevision set was an after- thought

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

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

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

(iii) When it imposed a custodial sentence on misdemeanors

Learned counsel for the appellant argued on the law as follows: with

regard to the offence of being in possession of property reasonably

suspected of having been stolen or feloniously obtained, there was

need to prove the following ingredients; that the person chargedwith the offence must have been in possession of the property, (b)

that there was reasonableness in the suspicion that the property

could have been stolen or unlawfully obtained and (c) that the

person who was found in possession of that property failed to give

an account of how they came into possession when asked. There

was need to establish a prima facie case before the person would be

asked to explain. The prosecution had a duty to demonstrate that


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the suspicion was reasonable and proportionate in relation to the

persons station in life. Once reasonableness has been established,

the burden is on the accused to give an explanation which mayreasonably be true. Even in the absence of an explanation, an

inference of guilt cannot be made unless it is the only reasonable

inference to be drawn.

Learned counsel referred to the following authorities for the

foregoing propositions of law; Kalonga V The People [1976] ZR 124,

Kiondo Hamiswe V Republic (1963) E.A. 209, Mandavu V R (1962) R

& N 298, Maseka V The People (1972) ZR 9 and Kaseke V The People

(1974) ZR 51.

Learned counsel continued as follows; The object of the offence in

counts one, two and three were the buildings while the object of the

offence in count six was the cash. However, in its judgment, the

court below said that in each of counts one, two and three there

were two distinct objects. The court below said that the appellant

was required to account for the buildings as well as the money that

was employed to purchase the buildings. This created two distinct

offences and was therefore, a misdirection. Therefore, the whole

charge was bad for duplicity. Consequently, the appellant was

subjected to an unfair trial. That approach by the court also flew in

the teeth ofSection 134(2) of the Criminal Procedure Code.

Learned counsel referred the court to the following authorities for

the submission above; Mwandila V The People (1979) ZR 174,

Shamwana V The People (1985) ZR 41, Kambarage Kaunda V The

People (1990-92) ZR, Mutolokwe V The People (1972) ZR 283 andThe

People V Patel, 1970 SJZ.


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Learned counsel continued with his submissions as follows; If the

object of the offence was the money used to purchase the buildings,

then there should have been evidence on record to show that theappellant was in possession of that money. However, one cannot be

charged with possession of something long after that thing has left

his possession. The transactions involving the properties, NDO 14,

KIT 643 and KIT 645 were concluded years before the arrest. This

means that the money which was alleged to have been used to buy

them had left the appellants possession long before the arrest.

Counsel referred the court to the case of Kateba V Republic (1967)

EA 215 for the above proposition.

Learned counsel continued with his submission as follows; There

was no evidence to prove possession of stands KIT 643, KIT 645

and NDO 14 by appellant. The appellant did deny her possession

and control of them. This was not challenged. The court below,however, made a finding of possession purely on the money aspect.

While the evidence on record was that there was no contract of sale,

the judgment of the court below was that there was a contract. That

holding was in conflict with the evidence.

Learned counsel continued as follows: Assuming that there was

evidence to prove possession, the next question was whether therewas evidence in the court below to show that there was a basis for

reasonable suspicion that the properties were stolen or unlawfully

obtained. There was no basis for such suspicion. The court below

should also have considered whether there was anything in the

appellants conduct, at the time of arrest, which raised reasonable

suspicion that the properties were stolen or unlawfully obtained.

Such evidence was not there.


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

Learned counsel continued as follows: the court below, in response

to the above issues merely glossed over them. The court below

merely stated that it had been satisfied that there was reason for

suspicion yet the ruling on a case to answer did not specify what

evidence had satisfied the court that there was reason forsuspicion. It was, therefore, wrong for the court to have even called

upon the appellant to give an explanation of the possession of the

properties.

Counsel continued as follows: The next question was whether the

appellant had given a satisfactory explanation to the court. The

Legislature intended to place a lesser burden on an accused person.Whilst acknowledging the law on an accuseds explanation, the

court below nevertheless, placed a standard which was higher than

the one provided for by the law, by substituting its own opinion of

how the transactions should have been done in respect of the

properties. The court only needed to ask itself whether the

explanation was probable. In view of the appellants station in life,

the sum of US$48,000 should not have come to the court with a

sense of shock. The courts demand that the appellant should have

produced books was tantamount to requesting her to prove herself

innocent. There is no requirement for an accused to prove

themselves innocent. The appellant was never asked to account for

the properties but she was asked to account for the money. This

she did. The appellant explained that she borrowed money from Mr.

B.Y. Mwila in order to buy Plot KIT 645. The appellant explained

that she bought plot NDO 14 from her account and KIT 643 by


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cash. The appellant also explained that the sum of K474 million

accrued to her account through property settlement, upon her

divorce.

Learned counsel submitted that with the foregoing arguments, the

convictions in counts one, two, three and six were against the law

and therefore, totally wrong.

Learned counsel argued grounds four, five and six together andargued against the conviction of the appellant for receiving the

television set as follows: The following ingredients needed to be

proved in that offence (a) that the theft of the property had occurred

(b) that the appellant was in possession or retention of the stolen

property and (c) that the appellant knew or had reason to believe

that the property had been stolen.

Counsel referred the court to the following authorities in support of

the submissions that will follow shortly; David Kasule V Uganda

(1966) E.A, R V Hepworth, R V Fearnley (1955) 2 ALL E R 918,

Nswana V The People (1988/89) ZR 174, Kuwani V The People and

Kipsaina V Republic (1975) E.A 253.

Learned counsel submitted as follows; a receiver must have guiltyknowledge that the property is stolen. If the explanation given by an

accused person is reasonable and might possibly be true, the

charge is not established. The thrust of Section 318 of the Penal

Code is that there must be proof that the property is stolen. Was

there any evidence on record that the television was stolen by Dr

Chiluba? Was there evidence that the television set was found in

the appellants possession? Was there evidence that at the time of


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receiving it, the appellant knew that the television was stolen? Dr

Chiluba has never been interviewed, charged or convicted for the

theft of the television set. He is supposed to be the principaloffender. Before the appellant could be said to have received stolen

property, Dr Chiluba ought to have been charged and convicted.

The prosecutions case in the lower court was that, since the

documents relating to the television set were endorsed State

House, Lusaka then the television set was the property of the

Government. Those documents were for the payment of duty. State

House does not pay duty. A prosecution witness from State House

was not aware of any television set stolen from State House. Nodocument was produced by the prosecution to show that

Government paid for the television set. No inventory was produced.

The appellant does not deny possession. As regards knowledge or

reason to believe that the television set was stolen, no evidence was

adduced to prove guilty knowledge. The court on the other hand

held that the appellant had guilty knowledge merely because she

was married to Dr Chiluba.

As regards sentencing, learned counsel submitted as follows; The

offences relating to being in possession of property are

misdemeanors. The section which creates that offence does not

provide a punishment. In those circumstances, Section 38 of the

Penal Code provides the punishment. The punishment is either a

fine or a term of imprisonment not exceeding two years or both.

Therefore, the court below erred in passing a sentence of 2 years.

Learned counsel relied on the following authorities for the foregoing

argument: Musonda V The People (1976) ZR, Siyauya V The People

(1976) ZR 253, The People v Kangawe Ndumba, 1990 S.J. Z and The

People V Mutambo (1981) ZR 314.


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Finally counsel submitted as follows: While the appellant concedesthat the offence of receiving the television set was a felony,

nevertheless a sentence of 3 years was harsh considering that

the appellant was a first offender and also bearing in mind the

value of the television set.

Those were the submissions of counsel for the appellant.

In response, learned counsel for the State submitted as follows: The

state supports the conviction by the lower court because there was

overwhelming evidence adduced against the appellant. As regards

the charges relating to properties NDO 14, KIT 643 and KIT 645,

the words that were inserted on amendment to show the values at

which they were purchased did not create any duplicity in the

charges. There was only one offence disclosed, namely that of failingto account for the property. Even the court below convicted the

appellant for failing to account for her possession of the properties

and not for cash. As regards the issue of possession, the appellant

paid for properties KIT 643 and KIT645. Although conveyancing was

not completed, equitable rights in those properties did pass on to

the appellant. Consequently she was a beneficial owner of the two

properties. Accordingly she possessed them. Although plot NDO 14

was in the name of Lilo Investment Limited, the money that was

used to purchase it was traced to the appellants personal account.

Learned counsel continued as follows: Coming to the suspicion,

there was reasonableness in the suspicion regarding how the

properties which the appellant was found to possess were acquired.

The appellant acquired the three properties within a space of three


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years. The total cost of these properties was US$188,000. Looking

at the income generated by the appellants business, the business

did not have capacity to raise about K1.5 billion in three years.

Learned counsel submitted further as follows: the court below was

on firm ground when it held that the appellants explanation was

unsatisfactory because there were inconsistence in the explanations

which she gave to the investigating officers and to the court.

Inconsistencies cannot be held to be a reasonable explanation

(Maseka V The People [1972] ZR).The appellant told the court belowthat she purchased the properties from proceeds from her business.

The appellant told the court that she had lied to the ZRA officers

when she presented them with a list showing that some of her

incomes were gifts from her husband. The appellant told the court

that she borrowed US$60,000 from Mr B.Y. Mwila and yet Mr B.Y

Mwilas testimony was that he lent the appellant a sum of

US$100,000. With those inconsistencies, the appellants

explanation cannot be said to be satisfactory.

Learned counsel continued as follows; the court below was on firm

ground when it held that the television set was stolen. The

appellant does not dispute that the television set was in her

possession. Custody of recently stolen property is enough proof of

possession. (Elias Kunda V The People [1980] ZR 100). Therefore, the

court would infer guilty knowledge since the appellant did notdispute possession. However, the prosecution had adduced a lot of

documents that showed that the television set was consigned to

State House. The appellant had reason to believe that the television

was unlawfully obtained because she had documents showing that

the television was consigned to State House and yet she had neither

worked nor lived at State House. The court below was on firm

ground to reject the appellants explanation regarding the television


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set because the document which the appellant produced and on

which was written that the television set was consigned to Dr

Chiluba at State House was not stamped by any authority. Hencethe court could not believe that the television set was sent by a Mr.

Tampyampa.

Those were the submissions by counsel for the respondent.

We would like to deal first with the counts relating to the appellantbeing in possession of property suspected to have been stolen or

unlawfully obtained. The appellant was convicted on four counts of

this offence. Three of those counts, namely, counts one, two and

three are in relation to buildings that the appellant bought using

various sums of hard currency. The fourth count, namely, count six

related to a sum of money in local currency that was found in the

appellants account. In counts one, two and three, the charge

specified two types of property; the physical plots and the cashmoney that was used to buy them. However, it is clear from the

amendments that were made to the charges that what was

reasonably suspected to have been stolen or unlawfully obtained by

the appellant, as far as the prosecution were concerned, was the

money which the appellant used to buy those properties. Indeed the

general direction of the evidence adduced by the prosecution was to

that effect. Therefore, in all the four counts of this charge, the

property that is the cause for the suspicion is the cash. Wetherefore do not find any duplicity in the charges.

We wish to start with an extract of Hall, J,s Judgment in the case

ofR V Nako and two others, 1 NRLR 49;


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where the owner of goods is known, the only charge that

should be laid is one of stealing or dishonestly receiving. A

charge under Section 287 will not lie when the owner of thegoods is known, since in that case there is no room for

reasonable suspicion that the goods are stolen, the owner being

able to say definitely whether or not the goods are his.

At that time, the offence for which the appellant is charged under

Section 319 of the Penal Codewas to be found under Section 287 of

the Penal Code. WEwish to cite another passage, this time from thejudgment of the then Chief Justice of Northern Rhodesia in the case

ofR V Morgan Kaonga, 5 NRLR, 580;

As stated, Kaonga was charged under Section 287 of the Penal

Code and under that section an accused has to account to the

court for his possession of property and unless he can give an

account to the satisfaction of the court as to how he came to be

in possession of the articles in question, he is guilty of a

misdemeanor and can be convicted accordingly. It will be

observed that there is no question that any person claims to be

the owner of the property in question and that is obvious when

it is considered that if the ownership is known, the owner of the

property can state how or when the property left his possession.

Section 287 cannot be used where the ownership of the

property is known, not even in cases where the ownership of

the property is known even though the owner is not known, the

proper charge in such case being stealing from a person

unknown. It would be unfair if this section were to be used in

such case. The property is either in the possession of the

accused lawfully or unlawfully and in case of theft, receiving or

retaining stolen property the Crown has to prove the theft of the

article before the accused can be called upon to account for his

possession. In a charge under Section 287, the accused has got


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to give an account to the satisfaction of the court once the

articles are proved to have been in his possession. The proper

charge in a case where the ownership is known, is of stealing,receiving stolen property or retaining stolen property as the case

may be because the property can be identified by the owner.

In the case of Mandavu V R (1957) R & N 298, the then Chief

Justice of Northern Rhodesia, held, inter alia;

(iv) on the question of onus of proof, the proper interpretation to

be placed upon Section 287 is that it is for the prosecution

initially to prove two matters beyond a reasonable doubt.Firstly, that the accused was either in possession of, or

conveying the article; and secondly, that there is a reasonable

suspicion that the article had been stolen or unlawfully

obtained. (v) the accused cannot be called upon to give an

account to the satisfaction of the court as to how he came by the

goods in question until the requirements in (iv) above have been

satisfied. (vi) in regard to the words be reasonably suspected

of having been stolen or unlawfully obtained, in Section 287 it isfor the prosecution to establish beyond a reasonable, a

reasonable suspicion in the mind of the court. The burden then

shifts to the accused to alley this suspicion in the mind of the

court by giving an account of his possession to the satisfaction

of the court.

From the foregoing authorities, it can be seen that the relationale

behind the charge of being in possession of anything which may


is as follows: The prosecution know that the accused is in

possession of something. They know that the circumstances

surrounding the accuseds possession of that thing raises a

reasonable suspicion that the accused either stole or unlawfully

obtained that thing. However, the prosecution do not know how the

accused came by that thing or from where he got it. The


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prosecution, then bring the accused to court so that he can explain

how he came by that thing or from where he got it. If the court is

satisfied with the accuseds explanation, then the accused will beset free. If the accuseds explanation does not satisfy the court, then

he is convicted of the offence.

Among the cardinal sub-ingredients of the offence is that the

prosecution should not know how and from where the accused got

the thing. Once the evidence shows that the prosecution know the

origin of that thing then this charge cannot stand. Instead, theaccused should be charged with the appropriate charge which the

circumstances disclose. For example, as the authorities cited

provide, if the prosecution know that the thing that is in the

possession of the accused is among items that were stolen from

some place, then the appropriate charge is theft of that thing. If the

prosecution know that the accused received that thing from

someone who had stolen it, then the appropriate offence to charge

the accused with is receiving that thing knowing that it was stolen.The examples could go on.

With the foregoing authorities and the explanation that We have

given as regards how the offence of being in possession of property


is applied in practice, we shall now deal with counts one, two, three

and six. These counts are for the same offence, namely, that theappellant had in her possession money which she was reasonably

suspected to have stolen or unlawfully obtained. In counts one, two

and three the appellant applied that money to buy real property. In

count six, the money was found in the account.


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The prosecution led evidence in the court below which showed that

the appellant bought three plots, namely stand NDO 14, stand KIT

643 and stand KIT 645. The prosecutions evidence, also, showedthat the appellant had in her account a sum of K474 million. The

prosecution led evidence to show that the appellants business

could not have raised the money that the appellant used to buy the

real property. The evidence also showed that the fast rate at which

the appellants account rose could not be supported by her business

income. The prosecution, then, adduced the following evidence; that

the appellant used to receive money from Dr Chiluba. In order to

establish that evidence, the prosecution called three witnesses. Theprosecution called a clerk of court who produced, to the court

below, a document which had been produced in another court in

which Dr Chiluba was facing criminal charges. The document was a

paper prepared by the appellant for tax purposes. In that

document, the appellant was declaring that she had received from

Dr Chiluba, over a period of time, a sum of US$352,000. The

prosecution then called a witness who had dealt with the

appellants declaration from the Zambia Revenue Authority. The witness told the court that the Task Force had requested the

Zambia Revenue Authority to investigate whether the appellant had

paid tax on the properties that she had bought. The witness

confirmed that the appellant prepared and gave him the document

on which she had indicated the money that she had received from

Dr Chiluba. The witness said that the appellant prepared the

declaration in the presence of Dr Chiluba. The prosecution also

called the First Secretary at the Zambia High Commission inLondon. The witness testified that Dr Chiluba instructed him to

deliver to the appellant in London, a sum of US$45,000. The

witness did so.

This evidence had no other purpose than to show that whatever

money that could not be accounted for by the appellants business


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activities was coming from Dr Chiluba. This is supported by the fact

that the appellants declaration was being used against Dr Chiluba

in his criminal charges. This evidence therefore, showed that theprosecution knew where the money that was not accounted for was

coming from.

According to the authorities that we have cited above, the moment

the prosecution adduced evidence pointing to Dr Chiluba as being

the source of the other money which could not be accounted for by

the appellants business then the suspicion that the appellant hadstolen or unlawfully obtained the extra money was effectively

removed. This evidence, therefore, destroyed a key ingredient

required to establish a prima facie case for the offence of being in

possession of property reasonably suspected to have been stolen or

unlawfully obtained. Had the court below been alive to the effect of

that evidence, it would have noted that a key ingredient to

establishing a prima facie case was missing. Therefore, at the close

of the prosecutions case, the court below ought not to have calledthe appellant to explain how and from where she got the money. It

was open to the court, at that stage, to consider whether or not the

evidence adduced did disclose another offence. The court was

empowered under Section 213 of the Criminal Procedure Code to do

so. If that were so, the court would have ordered an amendment of

the charge to that offence. The court would, then, have taken a

fresh plea from the appellant and allowed the appellant to re-call

any witness. In our view, only one other offence could possibly havebeen disclosed by the evidence before the court below, namely,

receiving money from Dr Chiluba knowing or having reason to

believe that Dr Chiluba had feloniously stolen or obtained it.

However, no attempt was made by the prosecution to show that Dr

Chiluba had stolen or unlawfully obtained that money.


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This, therefore, simply means that at the end of the prosecution

case the appellant was entitled to be acquitted of the charges of

being in possession of property reasonably suspected to have beenstolen or unlawfully obtained. Nevertheless the court below put her

on her defence on these charges.

The court found the appellants explanation to be unsatisfactory.

However, this is an appellant who, at the close of the prosecutions

case, was entitled to be acquitted of those charges and should not

have been called upon to give any explanation. What, then, is thelaw in such a situation?

A few decided Zambian authorities have addressed that situation

before. In 1973, at the High Court level, Justice Bruce-Lyle, in the

case ofMwila & Others V The People [1973] ZR 51 held, inter alia;

ii_ Even if an accused is wrongly put on his defence, if thedefence subsequently supplies what was lacking in the

prosecutions case, a conviction will not be quashed.

The following year, in 1974, Chief Justice Doyle, sitting as High

Court Judge in the case ofHahuti V The People [1974] ZR 154 held:

Section 206 of the Criminal Procedure Code is mandatory and

means that if, at the close of the prosecution, a prima facie case

against the accused is not made out, he is entitled to beacquitted. Hence, an error on the part of the trial court in

thinking that there is a prima facie case cannot alter that

position.


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In 1980, the Supreme Court, in the case of Penias Tembo V The

People [1980] ZR 218, followed the case ofHahuti and held;

It is mandatory for a court to acquit an accused at the close of

the prosecution case if the facts do not support the case against

him, and no evidence that is led thereafter can remedy the

deficiency in the prosecution evidence.

In 2004, the Supreme Court, in the case ofMwewa Murono V The

People [2004] ZR 207, again followed the case ofHahuti; At page 213the court said;

If the accused person is convicted as a result of an error of the

trial court in thinking that there is a prima facie case, the

conviction cannot stand. It must be quashed. An appellate court

has no discretion.

Following the authorities cited, the appellant is entitled to beacquitted of the counts relating to the charge of being in possession

of property reasonably suspected of having been stolen or

unlawfully obtained. This is because, as we have earlier pointed

out, at the close of the prosecutions case, a key ingredient in the

charge was not established. As we earlier said, the appellant should

not have been called upon to give an explanation. Whatever

happened in her defence is immaterial. Therefore, we would quash

the convictions in counts one, two, three and six.

Assuming that the appellant had been rightly put on her defence,

was her explanation satisfactory.


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In respect of cash money used to purchase KIT 643, she explained

that it was from her cash transactions from her numerous business

ventures which were all documented from the evidence before the

court. She explained to the court that the money used to purchase

stand KIT/645 was borrowed from Hon. Benjamin Yoram Mwila,

who when he testified in his evidence, confirmed that he did

actually lend the Appellant money in the sum of 100, 000.00 U.S.A

Dollars. His evidence was not challenged in any material way.

PW26 in his evidence conceded that even though the accuseds

explanation was true or not, he had not spoken to the Honourable

B.Y. Mwila even at the time of giving evidence in the lower court.

He went on to state on page 284 of the record of proceedings lines

05-10 that

We wanted to establish whether there could have been a

correspondi ng entry in eit her Lilos or mimmys account

for purcha se of KIT 64 5. If t her e is a borr owing of a huge

some of money, ordinarily it is supposed to pass through

a bank a ccount a nd tha t is why we checked. There is a

possibil it y what accused sa id could be tr ue.

NDO14 was transacted through the bank, by bank transfers which were confirmed by Prosecution Witness number two, Prosecution

Witness number (9) and Prosecution Witness number 26 among

others.


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In the case ofKaseke Vs. The People(1974) ZR 51, it was held by

Doyle C.J. then that;

(i) under Section 319 of the Penal Code the onus is upon the

accused to furnish an explanation which satisfies the court;

and

(ii) the onus is discharged if the explanation is one which,

though it might not necessarily be true, might reasonably be

true.

In the case at hand, it is on record that when the Appellant was put

on her defence she stated under oath how she came to source the

money used to purchase the properties. The lower court, however,

went on to demand that such high value transactions such as the

ones which the Appellant conducted would have been better

conducted through the banking system. This was a very high

burden which the court below was placing on the appellant. It

amounted to shifting the onus of proving the case onto the

appellant. There was nothing wrong if one transacted in cash,

whether for high value or lower value transactions. Section 319 of

the Penal Code does not impose any greater obligation on an

accused person than to give an explanation which might reasonablybe true. In the case ofDanny Zyambo Vs. The People (1977) ZR

153 Bruce Lyle JS as he was then stated that

(ii) Section 319 of the Penal Code does not impose any

great er obl igat ion on an accused person; if he gives an


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explanation which might reasonably be true, then he has

as a matter of law satisfied the court that the case has

not been proved beyond reasonable doubt and has

discharged the obligation imposed on him by the

section.

The same applied to the possession of cash amounting to K474,

000,000.00 at hand and banked at Standard Chartered Bank (Z)

Limited in count six. The Appellant explained to the lower court

how she used to maintain the account by numerous transactions

which were going through her account. This money which went

through the bank, some of it as deposits, was over a specified

period of six to seven months, coming from her business and her

property transactions. The Appellant was not required to start

accounting or differentiating amounts which were attributed to the

liquidation process of her companies, as the lower court wanted it

to be done. The lower court held that the Appellant was

inconsistent in her explanation, thereby rendering her explanation

unsatisfactory to the court. The basis for that holding by the court

below was that the appellant gave one explanation to the

investigating officers when she was interviewed and a differentexplanation during her defence before the court. With that

reasoning, the court overlooked that Section 319 of the Penal Code

does not require an accused person to give an explanation to an

investigating officer. It only requires an accused person to give an

explanation to the court. Therefore, the only explanation that was


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relevant was that which the appellant gave to the court. There was

no inconsistency in the explanation which she gave to the court

below. Therefore, the appellant had discharged her burden.

Therefore, even from this aspect, we would allow the appeal and

quash the convictions in counts one, two, three and six.

We now turn to count number five. The charge in this count as

earlier outlined was that the appellant received the television set

from Dr Chiluba knowing or having reason to believe the same tohave been feloniously stolen or obtained. Section 318(1) of the Penal

Code reads:

Any person who receives or retains any chattel, money

valuable security or other property whatsoever, knowing or

having reason to believe the same to have been feloniously

stolen, is guilty of a felony and liable to imprisonment for seven

years.

To prove this charge, the prosecution had to prove that Dr Chiluba

stole or unlawfully obtained the television set. We refer to the case

ofR V Morgan Kaonga, 5 NRLR 580.

The court below found that the television set was ordered by State

House and that upon its arrival, Dr Chiluba gave it to the appellant.

The court clearly misapprehended the facts relating to the television

and did not address the important legal requirement for theprosecution to prove the ingredients of the offence beyond

reasonable doubt. We have considered the evidence on record and

are of the view that there was no proof at all that the television set

was feloniously stolen from State House by Dr. Chiluba.

This is because, in this case, no prior complaint had been lodged by

State House or Government that a television set destined for State


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House had gone missing. The investigators, however, stumbled on

documents which showed that the television set which was in the

appellants possession had possibly belonged to State House.However, even after the investigators had come across the television

set, no one from the Government came forward to file a formal

complaint and prove that, indeed, the television set was ordered

and intended for State House. Considering that the appellant had

given an explanation as to how the television set came to be in her

possession, there was need for the prosecutions evidence to have

something more than just those documents. Consequently, the

findings of the court below were not supported by the weight of theevidence on this charge.

As regards the ingredient that the appellant knew that the television

set was stolen or feloniously obtained, the appellant could not have

suspected that the television set might have been stolen because

she directly dealt with the supplier of the television set Mr

Tampiyappa and paid the television set with the money given to herby the former President who used to reside at State House. Under

the circumstances, there was nothing unusual about the television

set having been sent to State House. Furthermore, the appellant

could not have suspected that the television set which was not even

marked with letters G.R.Z probably belonged to the Government of

Zambia. The appellants explanation was not rebutted. Mr

Tampiyappas affidavit was not challenged in any significant

manner. The lower court misdirected itself when it rejected theappellants explanation as to how she came into possession of the

television set when in fact her explanation might have reasonably

been true. We have applied the case of Elias Kunda V The People

(1980) ZR 100.

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

conviction.


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All in all, the result would be that the appellant would be acquittedon all the counts. Consequently, the appeal against sentence would

be academic. However, we would like to mention in passing that

where a misdemeanor does not provide for a punishment, Section

38 of the Penal Code provides that the maximum punishment

should not exceed a term of imprisonment for two years. In this

case, the court below imposed a sentence of 2 years on each of

counts one, two, three and six, which were misdemeanors. Those

sentences were wrong in principle. In an appropriate case we would

set them aside.

Dated the .day of .2010.

------------------------------E. M. HAMAUNDU

HIGH COURT JUDGE

------------------------------C. K. MAKUNGU

HIGH COURT JUDGE

------------------------------E. M. SIKAZWE

HIGH COURT JUDGE


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regina chiluba v the people

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