Agreement Mlilo v The State

### Preamble
1
HMA 46-19
CA 46/19
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AGREEMENT MLILO

vs

THE STATE

HIGH COURT OF ZIMBABWE

MAWADZE J & WAMAMBO J

MASVINGO, 9th   & 16th October 2019

CRIMINAL APPEAL

L. Mudisi for the appellant

T. Chikwati for the respondent

MAWADZE J:  	The appellant who was jointly charged with one Ekem Matutu was convicted of stock theft as defined in s 14(2)(b) of the Criminal Law (Codification and Reform) Act [Cap 9:23] by the Provincial Magistrate sitting at Zvishavane on 23 May 2019. After a full contested trial Ekem Matutu was acquitted. Ekem Matutu was not legally represented but the appellant was legally represented by one Nyabawa. The learned Provincial Magistrate did not find any special circumstances and on 5 June, 2019 the appellant was sentenced to the mandatory 9 years imprisonment.

Dissatisfied by both the conviction and sentence the appellant noted an appeal to this court though his erstwhile legal practitioners on 11 June 2019. The grounds of appeal are couched as follows;

“1.	AD CONVICTION

The court a quo misdirected itself when it found that the appellant was acting more than an agent in the transaction of the stolen beasts when the facts presented to the court a quo proved that the appellant was an agent to the transaction. The finding of the court a quo is so outrageous in its defiance of logic that no court whilst acting safely on the evidence presented would arrived at the finding in the regard found by the court a quo. A higher court is likely to set aside the lower court’s finding.

The court a quo erred when it convicted the appellant of stock theft in terms of s 114(2)(b) of the Code when it was clear that the appellant was an agent to the contracting parties in the sell agreement in respect of the stock theft in issue. (sic)

2.	AD SENTENCE

The court a quo erred at law in passing a mandatory sentence of nine years (Section 114(2) (e) circumstances warranting fine [Section (2)(f)]. The higher court is likely to consider the appropriate sentence of a fine whilst setting aside the mandatory sentence (sic).

3.	The court a quo erred at law when it dismissed the special circumstances advanced by the appellant in circumstances where a peculiar circumstance was evident in appellant’s conduct in the transaction. A higher court is likely to set aside the mandatory sentence imposed by the lower court (sic).

PRAYER

WHEREFORE, Appellant prays that the conviction and sentence of the court a quo set aside and found not guilty and acquitted.

ALTERNATIVELY, Appellant prays that the sentence be set aside and the High Court to impose a sentence it finds befitting” (sic)

The grounds of appeal which are drafted in a tedious, long and repetitive manner basically raise two issues. These are that;

in respect of the conviction the court a quo should have found that the appellant was simply an agent of the person(s) who were selling the beasts in question and should have been found not guilty and acquitted or at least be convicted of the lesser charge defined in s 114(2)(d) of the Criminal Code [Cap 9:23].

that in respect of sentence a quo should have found that there were special circumstances and should have not imposed the mandatory sentence if the appellant was convicted.

Mr Mudisi who represented the appellant on appeal sought, in our view, to even raise further grounds of appeal ostensibly on a point of law when he raised two other issues which are;

that the whole proceedings in the court a quo are a nullity for want of compliance with s 190 of the Criminal Procedure and Evidence Act [Cap 9:07], and

that the threshold of proof required in criminal matters was not achieved as it was not proved that the beasts allegedly offered for sale to the buyer belonged to the complainant.

In our view the appellant sought to throw anything possible at the appellate court in a bid to either prove his innocence or to have a sentence other than the mandatory sentence imposed. The appellant’s case even in the court a quo was so muddled up that it is difficult to even appreciate what the appellant said happened. This deliberate confusion brewed by the appellant should not in our view distract from the issues at hand. Other than the novel legal issue taken by Mr Mudisi in his submissions no legal issues arise in this appeal. The appeal can solely be resolved on factual issues.

Section 190 of the Criminal Procedure and Evidence Act, [Cap 9:07] deals with separation of trial and provides as follows;

“190.	Separate trials

When two or more persons are charged in the same indictment, summons or charge, whether with the same offence or with different offense, the court may at any time during the trial on the application of the prosecutor or of any of the accused, direct that the trial of the accused or any of them shall be held separately from the trial of the other or others or them, and may abstain from giving a judgment as to any of such accused.”

Despite the dilatory or slack manner in which the learned trial Provincial Magistrate compiled the record of proceedings it cannot be seriously argued that the proceedings in the court a quo are a nullity. Whilst the necessary amendments were not made to both the charge sheet and the state outline to reflect the parties who appeared before the court a quo, it is clear that the proceedings in the court a quo related to the appellant as the first accused and one Ekem Matutu as the second accused. The third accused who is Courage Kujokochera’s name is deleted on the face of the charge sheet. In the state outline the learned Provincial Magistrate did not only delete or cancel Courage Kujokochera’s name but endorsed the words “separation of trial” against his name. The back of the charge sheet clearly shows that only the appellant and Ekem Matutu were asked to plead to the charge and both pleaded not guilty on the charge on 21 November 2018. Further the verdict entered on 23 May 2019 only relates to the appellant who was found guilty as charged and Ekem Matutu was found not guilty and acquitted on the same date. On 5 June, 2019 only the appellant was therefore sentenced. On page 7 of the record which is the judgment of the court a quo the learned Provincial Magistrate in the last paragraph dealing with the evidence of the Investigating Officer had this to say;

“4th state witness was the 1.0. stationed at Zvishavane Republic Police, Buchwa. In his investigation he was led to accused 1 (being the appellant) as the seller of the beasts. Accused 1 also linked one Courage Mupokochera (to read Kujokochera) who is at large and accused 2” (being Ekem Matutu) [my emphasis].

A proper and holistic reading of the record of proceedings reveals no confusion at all. It clearly shows that only the appellant and Ekem Matutu were the two accused persons arraigned before the court a quo, despite that initially when the charge sheet and the state outline were prepared Courage Kujokochera was the 3rd accused. The proceedings were clearly in respect of the appellant and Ekem Matutu and not Courage Kujokochera. This finding of fact admits to no confusion at all as now purported by the appellant. All what is lacking is the recording by the learned Provincial Magistrate that an application for separation of trial was made and granted.  The record of proceedings nonetheless shows that this is what happened. The appellant who was legally represented raised no protest at all and kept his peace throughout the whole proceedings in the court a quo.  It is therefore disingenuous for the appellant to now argue on appeal that the absence of Courage Kujokochera during the trial prejudiced him and that the whole proceedings are a nullity. We are not persuaded by that argument at all.

The other issue we now consider is whether the appellant was properly convicted of contravening s 114(2)(b) of the Criminal Code [Cap 9:23].

What emerges from the evidence adduced is that complainant’s two beasts went missing for some days. Their description is ultimately not in issue. They were two oxen with the Mberengwa brand mark ‘JC’ on them. In addition to their described colours they both had complainant’s identification mark of ‘V’ cut on the left ear of each beast. Their photographs were taken at Shazhaume dip tank in Mwenezi.

The evidence of Lewis Ndhlovu the complainant’s herd boy is that he missed the two beasts on 3 June 2018. Later a fellow village one Mike Shoko sent some photographs of the 2 missing beasts to Lewis Ndhlovu who was advised that the beasts had been located in Mwenezi at Shazhaume dip tank where they were being offered for sale. Lewis Ndhlovu was given a telephone number of the prospective buyer of the said beasts one Patience Murade.

Lewis Ndhlovu said he then telephone Patience Murade who confirmed being offered the said beasts for sale by the appellant. As a result, Lewis Ndhlovu made a report to police. The two beasts however were abandoned at Shazhaume dip tank and later recovered by the complainant, when then returned home on their own.

The investigating officer Nyasha Matongera after receiving the report of theft of the beasts was advised that one Patience Murade who resides at Ngundu was the prospective buyer of the beasts. He located Patience Murade at Ngundu who confirmed that she attempted to buy the said two beasts from the appellant. The appellant was arrested and upon his arrest the appellant implicated Ekem Matutu and Courage Kujokochera as his accomplices. The investigating officer said police left a word for Courage Kujokochera who stays at Ngundu where appellant also resides to go to the police and Courage Kujokochera later went to the police and was arrested. Ekem Matutu who resides in Chief Ngungumbane area, Mberengwa who had also been implicated by the applicant was arrested.

The investigating officer said the stolen two oxen were identified by the complainant Lewis Ndhlovu as his cattle. The prospective buyer one Patience Murade identified the same beasts as the beasts offered to her for sale by the appellant at Shazhaume dip tank in Mwenezi. The point raised by Mr Mudisi, albeit belatedly, that the beasts offered to the prospective buyer were not complainant’s beasts is therefore without merit.

The investigating officer said it is only the appellant who upon his arrest implicated both Ekem Matutu (later acquitted) and one Courage Kujokochera in this matter. No other witness implicated them. Further the investigating officer said the appellant during investigations did not dispute attempting to sell the said two oxen to Patience Murade but his defence was that he had been given the said two oxen by Ekem Matutu and Courage Kujokochera to sell on their behalf. This therefore explains why police had to arrest Ekem Matutu and Courage Kujokochera.

The appellant’s linked in this matter in the following matter;

Zivanai Makotore a resident of Chibaya Village in Neshuro, Mwenezi is known to the appellant. He is the 2nd state witness. Zivanai Makotore is also known to the prospective buyer of the said beasts Patience Murade who resides at Ngundu and is a cattle buyer.

Zivanai Makotore said the appellant telephoned him that he, the appellant, had two beasts for sale at Shazhaume dip tank in Mwenezi. Thereafter Zivanai Makotore advised the prospective buyer Patience Murade who in turn expressed interest to buy the beasts. Zivanai Makotore then accompanied the prospective buyer Patience Murade to Shazhaume dip tank to locate the appellant and possibly buy the two beasts. They found appellant alone at Shazhaume dip tank with two oxen with a ‘J’ brand mark. Thereafter the appellant and the prospective buyer Patience Murade engaged in negotiating the sale of the beasts which the appellant offered for $925. Zivanai Makotore said before Patience Murade could pay for the two beasts she demanded from the appellant the stock card of the beasts and other relevant documents like police clearance form and permit to drive cattle. The appellant had none. Instead the appellant said the two beasts belonged to unnamed uncle who had driven them illegally (see page 25 of the record). The sale was therefore aborted as Patience Murade insisted on being shown proper documents relating to the two oxen.

Zivanai Makotore was clear that Ekem Matutu was not present at Shazhaume dip tank. The appellant was alone. Further he said the appellant never mentioned Courage Kujokochera as the owner of the two beasts. He said all what the appellant said when asked to produce documents for the two beasts was that they belonged to his unnamed uncle. As a result, Zivanai Makotore said Patience Murade could not buy the beasts and they left appellant with the two beasts at the dip tank imploring him to secure proper documentation.

The prospective buyer Patience Murade confirmed that she hired a motor vehicle from Ngundu, Chivi to proceed to Shazhaume dip tank in Mwenezi to buy two beasts after being advised by Zivanai Makotore that someone was offering the two beasts for sale. At Shazhaume dip tank she said they found the appellant alone with the two beasts which he offered to her for $925. Thereafter she asked the appellant to produce the stock card for the two beasts and the appellant said the relevant stock card was with one Happy’s father, a person not known to Patience Murade. Patience Murade asked for the permit of the two beasts. The appellant had none. She further asked to be shown police clearance forms for the two beasts. Again the appellant had none. This prompted Patience Murade to engage the local village head before she could pay for the two beasts. The local village head told her that he did not know anything about these two beasts. Shen then inquired from the appellant where exactly the beasts had come from. The appellant gave her contradictory explanations saying the two beast were from Musaverema, then changed and said from Mbuya Nehanda area and later changed saying Nhenga area all in Mberengwa and not in Mwenezi where they were at the dip tank. The appellant said the two beasts belonged to his uncle one Happy’s father, and that Patience could talk to him over the telephone. Patience Murade was put in touch by appellant to someone on the mobile phone but this did not allay her fears. As a result, she could not proceed with the sale of the two beasts that day without being shown proper documentation relating to the beasts.

Patience Murade said no other person claimed to her to be the owner of the two beasts. In fact, she said appellant was alone with the two beasts at the dip tank. It is appellant who negotiated the price of the two beasts. She said she never saw Ekem Matutu and that appellant never mentioned Courage Kujokochera. All in all, she just dealt with the appellant.

Patience Murade said she told the appellant that she could not proceed with the sale unless the appellant produced the relevant papers for the two beasts. Thereafter she left. The following day the appellant then sent her a text message saying the alleged owner of the two beasts was no longer selling the two beasts.

This is the evidence led in the court a quo, the basis upon which the appellant was convicted of contravening section 114(2)(b) of the Criminal Code [Cap 9:23] and his co-accused Ekem Matutu was found not guilty and acquitted. We find this evidence to be clear and straight forward. Patience Murade and Zivanai Makotore were very clear on how they got in contact with the appellant in relation to the two beasts. The appellant himself did not factually challenge this interaction. The court a quo rightly accepted their evidence.

The next issue to deal with relates to the appellant’s evidence or defence.

It is the appellant who implicated both Ekem Matutu and Courage Kujokochera upon his arrest by the police. Unfortunately for the appellant at the material time he was selling the two beasts at Shazhaume dip tank in Mwenezi he was alone and never mentioned these two people to the prospective buyer Patience Murade who was with Zivanai Makotore. Instead he said the two beasts belonged to an unnamed uncle or Happy’s father. The question therefore is if the appellant was acting in good faith as a mere agent why would he not disclose such material information to the prospective buyer.

In his defence outline the appellant said he was a “a go between” for Ekem Matutu and Courage Kujokochere whom he said was at large (we note again that the appellant at the time the trial commenced acknowledged that Courage Kujokochera was not part of the proceedings as he was at large). In his defence outline he said he told the prospective buyers that the beasts he was selling belong to Courage Kujokochera and that the prospective buyer dealt directly with Courage Kujokochera. He said it was only upon the police’s investigations that he too later learnt who the owner of the two beats was. He denied taking the beasts to the dip tank but only went there to meet the prospective buyers and negotiate with them. What is clearly lacking from the appellant’s defence outline is why Courage Kujokochera or whoever was the so-called owner of these beasts could not deal with the prospective buyers. As already said the prospective buyer denied that the appellant ever mentioned Courage Kujokochera and that appellant was alone at the dip tank with the beasts.

When the appellant was cross examined by his co-accused Ekem Matutu (see page 37 of the record) he gave this version;

The appellant said before the prospective buyer arrived at Shazhaume dip tank Courage Kujokochera and Ekem Matutu had given the appellant the two beasts (page 38 of the record). The appellant said he then met Ekem Matutu and Courage Kujokochera at Shazhaume dip tank who had the two beasts. Thereafter when the prospective buyer Patience Murade came with Zivanai Makotore at Shazhaume dip tank the appellant was now alone. The appellant does not explain why Ekem Matutu and Courage Kujokochera had disappeared!!

When the appellant was cross-examined by the prosecutor he gave another version. The appellant said he actually had gone to the dip tank with Patience Murade and Zivanai Makotore. Infact he was saying he was part of the prospective buyers and not seller of the beasts (see page 41 – 42). The appellant’s new evidence is that he had left Ngundu in Chivi for Shazhaume dip tank in Mwenezi with Patience Makotore. He sad for his efforts Patience Murade was to pay him $20. What escapes the appellant’s mind is that this was completely new evidence which even his legal practitioner never put to Patience Murade and Zivanai Makotore. Further, the appellant thus became entangled in his own web of lies. The appellant could not even say whose agent his was. Was he an agent for Courage Kujokochera and Ekem Matutu or for the buyer Patience Murade?

The appellant dismally failed to implicate Ekem Matutu in this matter. He even said when the sale fell through due to unavailability of documents for the two beasts he, the appellant, left the two beasts penned at the dip tank as he joined the prospective buyers. Again when pressed further the appellant changed and said he was Courage Kujokochera’s agent.

In our assessment the court a quo rightly rejected the appellant’s evidence. Indeed, no reasonable court can accept the appellant incoherent and inconsistent evidence. It is clear that the appellant was lying to the court. The conviction of the appellant can therefore not be faltered.

Given the findings of the court a quo it is clear that the appellant was not an agent of any persons he said. At most he could have been an accomplice with other persons. Once the version that he was an agent of any other person is rejected there cannot be any basis to make a finding that there are special circumstances in this case.

In the result, our view is that the appeal both in respect of conviction and sentence lacks merit and cannot succeed.

Accordingly, it is ordered that the appeal be and is hereby dismissed in its entirety.

Wamambo J. agrees …………………………………………………………

Mutendi, Mudisi & Shumba, appellant’s legal practitioners

National Prosecuting Authority, respondent’s legal practitioners