Criminal
Appeal
HUNGWE
J:
The
appellant was charged with the crime of fraud as defined in section
136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23]
together with one Stanley Musendo (“Musendo”).
During
the trial the appellant was the second accused. Despite their pleas
of not guilty, they were both convicted as charged and each of them
was sentenced to 10 years imprisonment of which 2 years imprisonment
was suspended for five years on condition of good behaviour. A
further 4 years imprisonment was suspended on condition that the
accused make restitution on or before 30 June 2014 leaving an
effective 4 years imprisonment if all conditions are met.
The
brief facts upon which the conviction was based can be summarised as
follows:
The
appellant, a legal practitioner, was engaged by the complainant,
Khaled Otman (Otman”), a Libyan national, in his capacity as an
attorney. The initial brief was to cause an eviction of certain
tenants who had breached a residential lease agreement. An
attorney-client relationship blossomed. With time, the client's
portfolio included both movable and immovable assets. He was managing
the business interests of a company called Adawillia Investments
(Pvt) Ltd, a commercial arm of the Libyan Government.
Khaled
fell ill and had to hastily leave for Libya for treatment. He
believed he would be away for no more than two or so weeks. He asked
his attorney, the appellant, to recommend someone to superintend over
the company business whilst he was away. That person would get 10% as
commission on rentals received for executing the mandate. He would
manage the haulage transport business, and so on.
The
appellant recommended one Stanley Musendo, who was later to become
the first accused. An oral briefing in the attorney's offices took
place and an oral agreement was concluded. The company's Operations
Manager, one Kenneth Madanhi (“Madanhi”) was asked by the
complainant Otman, as a director of Adawillia Investments (Pvt) Ltd,
to take Musendo to their company premises in Msasa, Harare where the
transport business was based on a fairly large industrial Stand.
Musendo
was allocated one of the residential units in the 10 unit block of
flats at 56 Natal Road, Avondale so that he is in close proximity
with the tenants from where he would be collecting rentals. Musendo
decided to lease the haulage trucks from the company himself at a
rate of US$5,000-00 per month. He paid for only one month around
November 2008 before Otman left. He left in November 2008.
Otman
remained indisposed for a longer period than he had anticipated. The
company's directors in Tripoli decided to delegate someone else
from the Libyan Embassy to take over the supervisory duties
previously held by Otman, one Ghunim.
When
Ghunim approached the appellant to collect the rentals expected from
Musendo, he was toasted from pillar to post before he finally managed
to contact Musendo. He was paid only US$260-00. When he protested,
Musendo, through his company P.M.C (Pvt) Ltd interdicted him from
approaching or entering the Libyan companies' premises. He then
learnt of the attempt by the appellant and Musendo to take over
Adawillia Investments, its assets both movable and immovable. He also
learnt that the trucking business assets had been sold; that the
immovable property at Msasa had been subdivided and one of the three
Stands sold, that no money had been collected by the appellant from
Musendo.
When
eventually Khaled arrived in Zimbabwe, his investigations led him to
conclude that the appellant had connived with the said Musendo in all
this and had caused the sale of immovable property and the attempted
takeover of the company by Musendo. They were jointly charged with
fraud for which they were both convicted.
They
both appeal against conviction and sentence.
Pending
this appeal, Musendo skipped bail and has not pressed on with the
appeal. This appeal is in respect of only Tapiwa Givemore Kasuso.
Mr
Rubaya of Nyamushaya Kasuso and Rubaya law firm filed a notice of
appeal on appellant's behalf. It consists of thirteen grounds of
appeal against conviction and six grounds of appeal against sentence.
The
thirteen grounds of appeal are a rambling critique of the findings of
fact by the trial court. Consequently the heads of argument prepared
by Mr Mpofu were afflicted by the same malady. The heads of argument
did not follow the grounds of appeal as proposed in the notice and
grounds of appeal filed in support of the appeal against conviction.
The heads consisted of the actual argument and did not comply with
the High Court Rules, 1971 (see order Rule 238).
The
essence of Mr Mpofu's argument is captured in his opening paragraph
where he states:
“1.1
There is no doubt that justice miscarried in this matter. The charge
brought against the second appellant ought not to have survived the
application for discharge appearing at pages 447-469 of the record
and leave is sought that reference be had in this appeal to three
submissions particularly relating to the manner in which the evidence
led for the State is analysed.
Second
appellant clearly committed no offence and the charge that he faced
was clearly not established.”
Mr
Mpofu urged this court to find that the appellant faced one set
allegation which were not proved but ended up being convicted on an
unclear basis. He states that the story relied upon by the State was
false and ought to have been rejected as such. He based his
submission on the claim that the court a quo found as fact that on 17
November 2008 in Otman's presence an agreement was drafted by the
appellant.
Having
found this as common cause, Mr Mpofu argues that it defies logic that
the learned magistrate proceeded to convict the appellant on the
basis of a charge which says he crafted a fictitious document after
Otman had left the country. He relies on the evidence of consummation
of the agreement given by Madanhi as well as what Otman told Madanhi
concerning the agreement.
Because
the court a quo accepted that appellant handed a copy of the
agreement to Otman before he signed it and that Otman took it away,
there was no obligation on the appellant to ensure that Otman read it
before he signed since Otman had ample opportunity to read it before
signing it.
The
reasoning adopted by the court, so Mr Mpofu argued, is that the court
disagreed with the manner in which the appellant conducted his
business. That did not prove that the appellant was guilty of fraud.
The
above argument by Mr Mpofu speaks to the assessment of the factual
findings by the court a quo.
An
Appellate Court will not lightly interfere with the findings of fact
by a trial court which are based on the credibility of witnesses. The
reason for this is that the trial court is better placed to assess
the witnesses from its observation as it enjoys the advantage of
seeing and hearing them first hand.
In
S v Isolano 1985 (1) ZLR 62 (SC) DUMBUTSHENA CJ expressed himself on
this principle this way:
“There
are many authorities of this court and persuasive authorities from
other jurisdictions on the proper approach of an Appellate Court to
the consideration of a decision based on fact. I find the remarks of
LORD MCMILLAN in Watt (or Thomas) v Thomas [1947] ALL ER 582 @ p 590
B-D very appropriate in this case. He said;
'The
Appellate Court had before it only the printed record of evidence.
Were that the whole evidence it might be said that the appellate
judges were entitled and qualified to reach their conclusion upon the
case, but it is only part of the evidence. What is lacking is
evidence of demeanour of the witness, their candour or their
partisanship, and all the incidental elements so difficult to
describe which make up the atmosphere of an actual trial.
This
assistance the trial judge possesses of in reaching his conclusion,
but it is not available to the Appellate Court.
So
far as the case stands on paper, it not infrequently happens that a
decision either way may seem equally open. When this is so, and it
may be said of the present case, then the decision of the trial
judge, who has enjoyed the advantages not available to the Appellate
Court, becomes of paramount importance and ought not to be disturbed.
This
is not an abrogation of the powers of a court of appeal on questions
of fact. The judgment of the trial judge on the facts may be
demonstrated in the printed evidence to be affected by material
inconsistencies and inaccuracies, or he may be shown to have failed
to appreciate the weight or bearing of circumstances admitted or
proved, or otherwise to have gone completely wrong.'”
See
also Hughs v Graniteside Holdings (Pvt) Ltd. S-13-84 (unreported); S
v Mlambo 1994 (2) ZLR 410 (S); Murambiwa v State HH-42-15.
That
approach of an Appellate Court when invited to interfere with the
factual findings of a trial judge was restated, not for the first
time, by the English Supreme Court in McGraddie v McGraddie [2013] UK
SC 58; [2013] 1 WLR 2477 and accurately summarised in the headnote:
“It
was a long settled principle, stated and related in domestic and
under common law jurisprudence, that an Appellate Court should not
interfere with the trial judge's conclusions on primary facts
unless satisfied that he was plainly wrong.”
LEMISON
LJ returned to the topic in Fage UK Ltd v Chobani UK Ltd [2014] EWCA
Civ 5; [2014] ETMR 26. In a vivid passage at para [114] he said:
“The
appellate courts have been repeatedly warned by recent cases at the
highest level, not to interfere with findings of fact by trial
judges, unless compelled to do so. This applied not only to findings
of facts but also the evaluation of those facts and inferences to be
drawn from them …. The reasons for this approach are many. They
include:-
(i)
The expertise of the trial judge in determining what facts are
relevant to the legal issues to be decided, and what true facts are
if they are disputed.
(ii)
The trial is not a dress rehearsal. It is the first and last show of
the night.
(iii)
Duplication of trial judge's role on appeal is a disproportionate
use of limited resources of an Appellate Court, and will seldom lead
to a different outcome in an individual case.
(iv)
In making his decisions the trial judge will have regard to the whole
sea of evidence presented to him, whereas an Appellate Court will
only be …… hoping.
(v)
The atmosphere of the courtroom in any event, be recreated by
reference to documents (including transcripts of evidence).
(vi)
Thus even if it were permissible to duplicate the role of the trial
judge, it cannot in practice be done.”
I
am of the firm view that the court a quo was entitled to come to the
findings of fact that it did, which include findings on credibility
of the State witnesses. These findings and inferences relating to the
central issues in this appeal present a complete block to its
success.
Mr
Mpofu complains that an agreement was reached on 17 November 2008
between Otman, Madanhi, Musendo and the appellant and was reduced to
writing, yet the appellant was convicted on the basis of the charge
which says he crafted a fictitious document after Otman had left the
country.
This
assertion calls for closer scrutiny.
The
agreement between Otman, Musendo and the appellant was that Musendo
was to superintend the complainant's business by way of collecting
rentals. Musendo would also pay rent for the haulage trucks that he
was hiring from the complainant's company represented by Otman.
It
was an oral agreement.
Madanhi
was present when this agreement was concluded. Madanhi was however,
not part of the discussions leading to this oral agreement the basis
upon which he was instructed by his employer to proceed to Msasa and
show Musendo the assets of the company and do an inventory of the
same.
Madanhi
was later to be approached by Musendo with a request that he signs a
document on behalf of Otman who, by then, was out of the country.
Madanhi declined this invitation.
The
agreement found to have been concluded at Mantsebo & Associates
was the gentlemen's agreement which the magistrate adverted to in
the paragraph relied on by Mr Mpofu. In that same paragraph, clearly
in light of the evidence in the record, when the magistrate refers to
the written agreement, she is referring to the one presented to
Madanhi after Otman had left the country. That this must be so
clearly emerges from the magistrate's treatment of the evidence of
the appellant which she rejects by pointing out that it is highly
unlikely that having drafted the agreement, appellant would not have
supervised its signature by the complainant since complainant was
still in Zimbabwe. He had reposed his trust in him as his attorney.
On this basis she rejected the claim by the appellant that
complainant signed the “agreement”.
The
analysis of the evidence on whether what was agreed to at Mantsebo &
Associates is what was eventually reduced to into exhibit 1 appears
at p23 of the record. The court carefully considered the “agreement”
and correctly observed that whist it is headed “lease agreement”
it had provision of a take-over of 55% of shares in Adawillia
Investments and that it did not mention the US$330,000-00 and ZW$168
billion claimed to have been paid for the shares. She clearly
expresses doubt as to the true nature of document that was produced
as exhibit 1. She then comes to the only reasonable reference that
the “agreement” exhibit 1 did not correctly represent what was
agreed to by the parties to the gentlemen's agreement.
She
also finds that the document was never given to Otman at any stage
but may have been shown to Madanhi when he was invited to sign it on
behalf of Otman.
She
finds that both Otman and Madanhi never signed it (record p 23).
She
finds that what Otman had asked the appellant to be the person's
mandate was nowhere in the document. She then concludes that the
document was the misrepresentation in this case.
Mr
Mpofu took issue with the competence of the allegation that there was
a misrepresentation, an essential element of the offence of fraud. In
his view, the court made no finding in respect of this essential
element. He argued that if the allegation is that the appellant
crafted the document such that it did not say what the parties had
agreed on, then the document did not misrepresent anything to Otman.
Since he did not see it, he could not therefore have been
misrepresented by it. If it misrepresented to a third party, then
that party, not Otman, must be the complainant.
Additionally,
Mr Mpofu argued that that party must have suffered actual or
potential prejudice as a result of acting on the misrepresentation.
It
needs not be repeated that there are six legal requirements that must
be perfectly complied with before an accused can be convicted of a
crime. These are:
(a)
legality;
(b)
conduct;
(c)
compliance with definitional elements;
(d)
unlawfulness;
(e)
capacity;
(f)
culpability;
See
sections 12, 13, 14, 15, 16, 17 of the Criminal Law (Codification and
Reform) Act [Chapter 9:23] (“the Act”].
At
common law, fraud is the unlawful and intentional making of a
misrepresentation which causes actual prejudice or which is
potentially prejudicial. Section 136 of the Act states:
“136
FRAUD
Any
person who makes a misrepresentation –
(a)
intending to deceive another person or realising that there is a real
risk or probability of deceiving another person; and
(b)
intending to cause another person to act upon the misrepresentation
to his prejudice, or realising that there is a real risk or
probability that another person may act upon the misrepresentation to
his or her prejudice; shall be guilty of a fraud if the
misrepresentation causes actual prejudice or is potentially
prejudicial to another person, and liable to:-
(i)
a fine ……
(ii)
imprisonment for a period not exceeding thirty five years or both.”
The
first requirement is that there must be a misrepresentation. This is
the conduct requirement of the crime. By misrepresentation is meant a
deception by means of a falsehood. Put differently, the accused must
represent to another that a fact or set of facts exists which in fact
does not exist.
Although
the misrepresentation will generally take the form of writing or
speech, conduct other than writing or speech may sometimes be
sufficient, such as a nod of the head to signify consent. (S v
Larking 1934 AD 91). The misrepresentation may either be express or
implied, by commission or omission.
In
most cases misrepresentation is made by way of commission. Further,
the misrepresentation must refer to an existing state of affairs or
to some past event - but not to some future event. S v Feinbert 1956
(1) SA 734 (O) @ 736.
In
certain situations however, a person who promises to do something at
some future stage implies, when making the promise that she intends
fulfilling it, if this is not in fact her intention she is guilty of
a falsehood regarding an existing state of affairs in that she
implies that she has a certain belief or intention which she in fact
does not have (R v Persotam 1938 AD 92).
As
for the second element of the crime, namely the requirement that the
misrepresentation must cause actual prejudice or be potentially
prejudicial; the crime is committed only if the lie brings about some
sort of harm to another. This is referred to as prejudice.
In
many instances of fraud the person to who the false representation is
made is in fact prejudiced. Actual prejudice is, however, not
required, mere potential prejudice being sufficient to warrant
conviction. The prejudice need not sound in money only; or only
patrimonial. Potential prejudice means that the misrepresentation
looked at objectively, involved some risk of prejudice, or that it
was likely to prejudice.
“Likely
to prejudice” does not mean that there should be a probability of
prejudice, but only that there should be a possibility of prejudice.
S v Hayne 1956 (3) SA 604 (A). What this means is that what is
required is that prejudice can be, not will be, caused.
More
importantly the prejudice need not necessarily be suffered by the
representee, i.e the person to who the misrepresentation is directed;
prejudice to a third party, or even to the State or the community in
general is sufficient; S v Myeza 1985 (4) SA 30 (T) @ p 32 C.
It
is not relevant that the victim was not misled by the
misrepresentation because it is the representation's potential
which is the crucial issue; R v Dyonta 1935 AD 52; S v Isaacs 1968
(2) SA 187 (D) @ p 191.
As
such it follows that since potential prejudice is sufficient, it is
unnecessary to require a causal connection between the
misrepresentation and the prejudice. Even where there is no causal
connection there may still be fraud provided one can say that the
misrepresenting holds the potential for prejudice. After all a
successful misrepresentation is not a requirement for fraud.
Applying
the above principles to the facts of the present matter it will be
clear that several instances of misrepresentation are apparent. As
the court a quo found, the parties, i.e. the complainant, appellant
and Musendo, agreed that Musendo was to superintend the businesses
and assets of Adawillia Investments for the short duration of
complaint's absence from Zimbabwe.
After
Otman left the appellant and Musendo crafted an “agreement” which
did not correctly capture this agreement. It was clearly a document
which was calculated to deceive whoever was expected to rely on it,
its estate agents, the tenants the purchasers of land and so on.
The
contention by Mr Mpofu was that since complainant never saw this
document the charge was fatally flawed and the appellant could not
have been convicted on this charge without it being amended.
A
reading of both the common law in respect of the element of
misrepresentation as well as section 136 does not support this
contention.
I
have demonstrated why common law principles do not support this
intention. I proceed to examine section 136 of the Act that speaks of
“intention to deceive another person” and “intending to cause
another person to act upon the misrepresentation to his or her
prejudice or realising that there was a real risk or possibility that
another person may act upon the misrepresentation to his or her
prejudice.”
The
wording is wide enough to include the common law position in which
prejudice is not suffered only by the person to whom the
misrepresentation is made with intent to deceive generally.
Thus
whilst it is true that Otman never acted upon the document produced
after he left the country, he clearly went away under a false belief
created by the appellant and Musendo that Musendo would act as his
agent in supervision of the assets and business interests of
Adawillia for the duration of the period that the applicant would be
away.
In
truth and in fact the appellant and Musendo designed a scheme whereby
not only would Musendo be in charge of Adawillia Investments (Pvt)
Ltd business assets but would also take the proceeds for his own use.
He proceeded to sell the portion of the immovable asset which the
appellant must have kept to excised from the main title deed. This is
the inescapable inference from the evidence which show that the
appellant was a practicing attorney in the law firm that facilitated
the sale of the immovable property.
Appellant's
foot-prints, through his erstwhile partner, one Nyamushaya, are so
vivid that the court a quo cannot be faulted for its finding that he
indeed to facilitated the sale of all the assets which were sold,
both movable and immovable.
In
any event, the State case is assisted by the provisions of section
196 of the Criminal Law (Codification & Reform) Act [Chapter
9:23] which provides for the liability of co-perpetrators.
The
facts established at trial inexorably implicate the appellant in the
commission of the crime. The appellant identified and recommended
Musendo to be the agent of the complainant. He drew up the document
which Musendo used to facilitate the sale of the complainant's
assets. When the matter was called for trial he assisted in
facilitating the absence of a witness who had information as to how
his partner Nyamushaya facilitated the sale of the assets together
with Musendo.
The
circumstances from which the inference of guilt was drawn was
cogently and firmly established. The circumstances of the case, taken
cumulatively, do indeed form a claim so complete that there is no
escape from the conclusion that within human probability the crime
was committed by Musendo and the appellant and no-one else. See S v
Fata 2013 (2) ZLR 635; S v Mtetwa 2014 (2) ZLR 533.
In
the circumstances I am unable to disturb the appellant's conviction
for fraud by the court a quo.
As
for sentence I did not hear Mr Mpofu to argue that the learned
magistrate acted on a wrong principle or that she misdirected herself
in any respect. The complainant was that the sentence of 10 years
imprisonment was so harsh as to induce a sense of shock.
It
is trite that sentencing is within the discretion of the trial court.
As long as that discretion is exercised judicially this court might
not to interfere with that sentence.
The
applicant was a practicing attorney. The complainant trusted him to
handle his affairs with integrity and probity. His trust was betrayed
by the greed exhibited by the appellant and Musendo. This was
notwithstanding that the appellant also recovered fees from the
complainant.
I
find his moral blameworthy to be quite high. I therefore do not share
the sentiment that the sentence of 10 years with two years suspended
for five years and a further 4 years suspended on condition of
restitution is so harsh as to induce a sense of shock.
In
the result the appeal against both conviction and sentence is
dismissed.
BERE
J authorizes me to state that he agrees with this judgment.
Rubaya
& Chatambudza, appellant's legal practitioners
National
Prosecuting Authority, legal practitioners for the State
