DUBE J: The
appellant appeared before a Bindura magistrate facing a charge of contravening
s 136 of the Criminal Law (Codification & Reform) Act [Cap9:23], that is fraud.
The allegations are briefly that sometime in September 2008, the appellant
fraudulently sold the complainant a
grinding mill. That the appellant failed at the time of the sale, to disclose
the fact that the grinding mill was
built under a power line and on unapproved
plans and that it had been condemned by Chaminuka
Rural District Council.
The appellant
was convicted of the offence and sentenced to six years imprisonment of which
two years was suspended on the usual conditions of good conduct. Aggrieved by
this decision the appellant appealed to this court. The State conceded that the
conviction was improper and on 8 November 2011, we allowed the appeal and set
aside the conviction and sentence. We gave our brief reasons thereafter. For
some strange reason, the appellant's counsel has written to the court
requesting for reasons for judgment. These are they:
Below is a
caption of the concession by the State:
"7. It is submitted that this is a proper
case in which the court a quo must
have invoked provisions of s 232 of the Criminal Procedure and Evidence Act [Cap 9:07]. The section empowers the trial court to mero motu subpoena a witness whose evidence is vital for a just
decision of the case. Failure by the court to do so is a fatal misdirection.
See State v Todzvo 1997 (2) ZLR 162 (S).
In casu the evidence of the following
witnesses would have assisted the court to clarify evidence and therefore reach
a just decision of the case:
i)
The evidence of Chipaya was pertinent to
clarify the circumstances surrounding the transaction entered into by the
appellant and the complainant. It remained unclear at the conclusion of trial
whether Chipaya gave the complainant a loan at the appellant's behest; a fact
which the appellant denied. The role played by Chipaya which would have
conclusively assisted in determining the appellant's intention; was not fully
canvassed by the trial court.
ii)
The evidence of "the individual" who
approached council for inspection of the building was vital. It would directly
link the appellant to the commission of the offence. It would no doubt prove
that he "knew" that the building was indeed condemned. Relying on exhibit 2
which does not even bear the signature of the "individual" as proof of receipt,
was unsafe in the circumstances.
iii)
The evidence of officials from the
Health Inspection Department, who supposedly continued renewing the appellant's
trading licence in light of the serious defects and hazard posed by the
building.
iv)
There evidence of West Rangarirai Dandawa
who was allegedly operating the milling plant when the inspection of the
building was carried out was pertinent. He would have either confirmed or
denied that the inspection took place in his presence and if it did, whether
the findings were relayed to the appellant. His evidence would also have been
tested under cross examination.
8. The respondent also concedes that the
evidence of Itai Rudzati, Titus Mudereri and Sydney Chiwara who are all
employed by Chaminuka District Council; was at variance on material aspects
with regards condemnation of the building in question. Whilst Titus Mudereri
could not confirm that the building was indeed condemned; Sydney Chiwara the
Chief Executive Officer maintained that the council in question had not dealt
with that specific case and in terms of the Rural District Councils Act [Cap 29:13]; he must indeed have knowledge of it. See, s51 (4) and 51 (5)
of the relevant Act. There is no evidence on record that the condemnation of
the building ever went through.
9. It is submitted that in the absence of
clarity of facts and proof of the facts, it was indeed a misdirection on the
part of the learned court a quo to
attempt to draw inferences from such facts. The law on circumstantial evidence
was clearly spelt out by WATERMEYER JA in R
v Blom 1939 ad 188 AT 202 - 203. In casu, no direct evidence was led to show
that the appellant made a misrepresentation and had the requisite intention.
The court a quo attempted to draw
inferences from inadequate and unsubstantiated facts, and this was a fatal
misdirection."
We consider that the concession by the
State was proper for the following reasons;
There is no
evidence on record to show that the building was ever condemned by the
responsible council. Evidence was led to the effect that there were recommendations
made to condemn the grinding mill but it does not appear that the
recommendations were acted upon or followed up. It does not seem that council
ever made any resolution to the effect that the grinding mill was built on
unapproved plans and more so that it had condemned the premises and made a
decision that the grinding mill should be demolished. If any such decision was
ever made, no evidence was led to show that appellant was aware of that decision
or development. There was evidence led
to the effect that some unidentified individual had at some stage approached
council with a request to council for inspection of the grinding mill premises but the record does
not reveal who this individual is. The court assumed that the individual was the
appellant and that it had in fact been communicated to him that the building
was condemned. The appellant was not
identified as the individual. The Health Inspection Department continued to
renew the appellant's trading licence and therefore implying that there was no
issue with the operation of the mill.
An official from
council was called as a defence witness and he told the court that the building
was never officially condemned and that if there were any recommendations to
demolish the mill, such recommendations were not acted upon by council.
In the absence
of any evidence on record to show firstly, that the process of condemnation
went through and secondly that the appellant was aware of any decision or
process regarding condemnation of the building in issue, it is improper to find
that appellant made the misrepresentation as alleged. In a charge of fraud
where it is alleged that an offender made misrepresentations based on information
that he supposedly holds and which another person relied and acted upon, it is
essential that the State lead evidence to show that the offender, possessed
knowledge of the alleged facts. That despite possessing such knowledge of the
position complained of, he deliberately with intention to defraud, failed to
disclose the information complained of.
The inference
that the trial magistrate drew, that the appellant had knowledge that the
buildings were condemned is not the only reasonable inference to be drawn from
the proved set of circumstances. For that reason we upheld the appeal and
quashed the conviction and sentence.
BHUNU J: agrees .........
Mushuma
Law Chambers, appellant's legal practitioners
Attorney General's Office, respondent's legal practitioners
