The appellants, who are husband and wife, were convicted on
the basis that they sold land, which did not belong to the first appellant, to
various complainants, through misrepresentations, which resulted in the
complainants being prejudiced of their money.
The State alleged that the land in question belonged to one
Mr Rogerio Barbosa De Sa.
At the hearing of the appeal, counsel for the respondent
made a concession that indeed there was no evidence on record to prove that the
land in question belonged to Mr Rogerio Barbosa De Sa, and that the appeal be
allowed. In our view, this was a properly made concession.
The main issue the trial court should have determined, was,
who was the owner of the land in question?
The land at the centre of the trial was known as Christmas
Gift (Pvt) Limited. The evidence of Mr Rogerio Barbosa De Sa was to the effect
that at one point he offered 15% shares to the first appellant in DMC Holdings
but the first appellant never took up the offer. He, in fact, said the first
appellant did not pay for the shares, and, therefore, had no claim to Christmas
Gift (Pvt) limited. The evidence of Mr Rogerio Barbosa De Sa shows that he was
a close friend of both appellants whom he trusted very much. On the other hand,
the evidence of the first appellant was that he paid $1,0000= in free funds
held by him in Midlands Bank (now HSBC) in 1988 through inter-bank transfer
since he and Mr De Sa both held accounts with the same bank. A perusal of the
record shows that DMC Holdings (Pvt) Limited comprised four subsidiary
companies. These are;
1. Christmas Gift (Pvt) Limited; (the land in question).
2. Keidans Woodworking (Pvt) Limited;
3. Zambesia Metal Trading and Manufacturing Company (Pvt)
Limited; and
4. Woodgate Investments (Pvt) Limited.
Exhibit 31 is a Memorandum of Agreement entered into by and
between Rogerio Barbosa de Sa and the first appellant, Mr Wilford Edward Nyambo,
on 25 October 1988, wherein Edward Nyambo was offered to purchase 15%
shares in DMC Holdings (Pvt) Limited. Clause 7 of the Agreement read as
follows:-
“With effect from the date of this agreement, the
transferee (DR. Nyambo), shall be entitled to full participation rights in the
capital and profits of the company as if he had exercised his option to
purchase the said shares on this date. Any distributions by the company shall
be payable to the transferor (De Sa) as agent of the transferee in so far as
such distributions relate to the shares subject to this option.”
To confirm the first appellant's story that he had the
right to deal with the land as he did are two letters, exhibits 32 and 36.
Exhibit 32 is a letter written by Mr Rogerio De Sa, dated 28 January 1993,
authorising a Mr Frasser, of Nick Collins and Associates, to release all files
relating to Christmas Gift (Pvt) Limited to DR. Nyambo (the first appellant).
Further, there is exhibit 36 in the record, which is a letter written and
signed by both the first appellant and Rogerio De Sa, as Directors of Christmas
Gift (Pvt) Limited, to the Chief Planning Officer for Gweru, dated 13 June 1995,
wherein they said:-
“We wish to confirm that DG Machakaire is duly authorised
by us to carry out all applications and all necessary work to be presented to
yourselves for the above sub-division.
Yours faithfully
For Christmas Gift (Private) Limited.”
A further perusal of the record shows nothing to show that
Mr Rogerio De Sa later withdrew the authority he gave to the first appellant.
In fact, the first appellant, being assisted by the second appellant who was
responsible for all administrative issues, acted in terms of the Memorandum of Agreement
that the first appellant entered with Mr Rogerio De Sa.
Counsel for the appellants even referred us to the case of
Anthony Hickey v (1) DMC Holdings (Private) Limited (2) Christmas Gift
(Private) Limited (3) Rogerio Barbosa Azevedo De Sa (4) National Social
Security Authority, SC17-14, which showed that Anthony Hickey holds a 30%
shareholding in DMC Holdings (Pvt) Limited, and that DMC Holdings (Pvt) Ltd is
a 100% shareholder in Christmas Gift (Pvt) Limited. This means that Rogerio
Barbosa de Sa is not the sole owner of Christmas Gift (Pvt) Limited.
In the circumstances the court erred by concluding that the
first appellant had no right in the land in question. There was, therefore, no
misrepresentation committed by the appellants.
The conviction of the appellants was therefore improper. In
the result, the appeal is allowed. The conviction is quashed and sentence is
set aside.
The appellants are found not guilty and are
acquitted.
