George Banda v The People (APPEAL NO. 51/2022) (6 March 2024) – ZambiaLII

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 51/2022 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: fME,C, OUltT GEORGE BANDA ELLANT AND THE PEOPLE RESPONDENT Coram: Hamaundu, Mutuna and Chisanga, JJS On 1st November, 2022 and 5th March, 2024 For the Appellant: Mr. B. A. Sitali and Mr. P Mutale, Messrs Buttler and Company Legal Practitioners For the State: Col. C. Nhamboteh, Principal State Advocate JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court Cases referred to: 1. Kalebu Banda v The People (1977) ZR 169 2. Zulu v New Avondale Housing Project Limited (1982) ZR 172 3. Sithole v State Lotteries Board [1975] ZR 106 4. Phiri and Another v The People (1973) ZR 47 5. Fawaz and Chelelwa v The People (1995/1997) ZR 3 6. Dallison v Caffery (1964) 2 All E.R 610. Legislation referred to: The Defence Act, Chapter 106 of the Laws of Zambia, Section 138 J2 1.0 Introduction 1.1 The appellant appeals against his conviction by a court martial of the Zambia Air Force convened here in Lusaka. 1.2 At the material time the appellant was an employee of the Zambia Air Force, holding the rank of Lieutenant Colonel. On 17th June, 2020 the appellant appeared before a court martial constituted by the Zambia Air Force under the Defence Act, Chapter 106 of the Laws of Zambia. He was charged with seven counts of signing a false document contrary to section 66(a) of the Defence Act. On the same facts, the appellant was charged with a further seven counts of committing a civil offence contrary to section 73 of the Defence Act. 1.3 The approach that this court adopts when dealing with appeals from courts martial is provided in section 138 of the Defence Act. The section reads: "138 (1) subject to the provisions of section one hundred and thirty-nine, on an appeal under this part against a conviction, the Supreme Court shall allow the appeal if it thinks that the finding of the court-martial is unreasonable or cannot be supported having regard to the evidence or involves a wrong decision on a question J3 of law or that, on any ground, there was a miscarriage of justice, and in any other case shall dismiss the appeal: Provided that the Supreme court may, notwithstanding that it is of the opinion that the point raised in the appeal might be decided in favour of the appellant, dismiss the appeal if it considers that no substantial miscarriage of justice has actually occurred." 2.0 The Case 2.1 Among the appellants duties was the function of issuing letters of confirmation to banks to support applications for loans by employees of the Zambia Air Force. In this particular case, it was alleged that the appellant had provided letters of confirmation, 1n the case of seven employees, which contained false information regarding their salaries, housing allowance and, in some cases, retirement age. 2.2 Evidence was adduced before the court-martial which showed that: the payslips which were presented to the bank were not the real payslips belonging to those seven employees; the payslips were not generated from the Zambia Air Force system; the false payslips purported to reflect enhanced salaries and housing allowances which J4 the seven employees were not in receipt of; and, in all the seven cases, the bank was presented with a letter confirming the details on the false payslip, and purportedly signed by the appellant. 2.3 Two employees from the bank were called and they both testified that, in all the seven cases, the bank phoned the appellant to confirm whether he was the one who had issued the letters of confirmation; and that, in each case, the appellant had confirmed that he had issued the letter of confirmation. 2.4 In his defence, the appellant agreed that it was his duty to provide letters of confirmation to employees. However, he denied having signed the letters of confirmation in the seven cases in issue. 3.0 The Court-Martial's Findings 3 .1 The court-martial accepted the testimony of the bank employees that the appellant had confirmed that he had signed the seven confirmation letters. The court, therefore, found as a fact that the appellant had indeed signed the said letters of confirmation. Dismissing the appellant's ' ' J5 contention that the signature on the letters was not his, the court-martial said that, although the burden was not on him to prove his innocence, the appellant should nevertheless have gone further to provide documents which would have helped the court-martial to compare the disputed signature on the letters of confirmation with the one that was on those other documents. 3.2 Regarding another key ingredient of the offence, namely, that the appellant knew or ought to have known that the documents contained false information or entries, the court-martial was of the view that the appellant being a senior officer of many years at the station ought to have known that the payslips did not conform with the standard format of Zambia Air Force payslips and were, therefore, false. For that reason, the court-martial found as a fact that the appellant knew that the information that he was confirming was false. 3.3 On the above two key findings of fact, the appellant was convicted of the first offence. The court-martial, however, J6 acquitted the appellant on the second offence on the ground that some key ingredient had not been proved. 3.4 As punishment for the offence, the appellant was dismissed from the Zambia Air Force. 4.0 The Appeal 4.1 The appellant filed seven grounds of appeal, and these read as follows: 1. The court below erred in law and fact by convicting the appellant in the absence of any evidence showing that the signature on the introductory letters which were presented to the bank at Ndola was his. 2. The court below erred in law and fact when it stated that the onus was on the appellant to prove that the signature on the introductory letters which were presented to the bank was not his, thereby shifting the burden of proof from the prosecution to the appellant. 3. The court below misdirected itself in law when, following the summing up by the judge advocate, the court did not close to deliberate on their findings on the charges as required by procedure Rules 64 and 79(4) of the Defence (Procedure) Rules but the Court President proceeded to announce the court's findings there and then. 4. The court below erred in law and fact in proceeding with the trial of the appellant in spite of the evidence showing that the same Zambia Air Force had already taken disciplinary action, albeit wrongly, against the appellant for the same allegations. J7 5. the court below erred in law and fact when it refused to grant the appellant adequate time to prepare for his defence, and by allowing the prosecution to withhold evidence which is favourable to the appellant. 6. The court below erred in law and fact when, after it refused to sign the initial summons to subpoena witnesses from the Zambia Air Force, it stated that the accused person should have subpoenaed documents from ZAF to prove his innocence. 7. Since the charges upon which the appellant was tried and convicted were duplicitous, the appellant was a victim of a mistrial in the court below." 4.2 At the hearing, the appellant abandoned the fourth and seventh grounds of appeal 4.3 In this appeal we shall be considering the grounds of appeal in terms of whether or not they meet any of the thresholds in section 138 and not merely whether there is merit on some points. 5.0 The Arguments and our Decision 5. 1 Ground One 5.1.1 The gist of the appellant's arguments in the first ground of appeal is that, at the trial, the prosecution did not adduce evidence which proved beyond reasonable doubt that the signature on JS the seven letters of introduction belonged to the appellant. In support of this argument, Mr. Sitali, counsel for the appellant, has raised four points. 5.1.2 In the first point, Counsel submits that the evidence of the employees who received the loans was that they left Lusaka and went to Ndola where they found all the documentation necessary for the loan application, including the letter of introduction and that the appellant was not at Ndola on these occasions. According to counsel, this pointed to the fact that someone other than the appellant was s1gn1ng the letters of introduction at Ndola. 5.1.3 The second point that counsel for the appellant raises is that, at the trial, the prosecution did not adduce other documents on which the appellant had signed in order to compare the signature with that which appeared on the seven letters of introduction. Mr. Sitali then contends that the only reason that the prosecution made such an J9 om1ss10n 1s that, had they produced the other documents, the court- martial would have seen that the signatures were different. Counsel therefore urges us to so hold, in line with the case of Kalebu Banda v The Peoplel11 where we held: "Where evidence available only to the Police is not placed before the court, it must be assumed that had it been produced, it would have been favourable to the accused" 5.1.4 Mr. Sitali also criticises the court-martial for having made a finding that the appellant signed the seven letters of introduction when, according to him, there was no evidence before it to compare the signatures. Counsel argues that, for this reason, the finding by the court-martial was perverse and should be reversed. Mr. Sitali relies on the case of Zulu v New Avondale Housing Project Limited12 for that submission. 5.1.5 The third point that Mr. Sitali raises is that even the witness from the Bank, PW2, said, in cross examination that she had observed some JlO inconsistencies in the signature which was on the seven letters of introduction. 5.1.6 The fourth, and final, point that Mr. Sitali raises in this ground is that none of the witnesses who received the loans said that they had seen the appellant sign their respective letters of introduction. 5.1. 7 The respondent's counter-argument in the first ground of appeal is that there was sufficient circumstantial evidence pointing to the fact that the appellant signed the seven letters of introduction. On behalf of the respondent, Colonel Nhamboteh submits that the testimony of the two witnesses from the Bank, PWl and PW2, was that they used to call the appellant to confirm every letter of introduction, and that in each case such letter would be stamped with a 'call back' stamp to indicate that the appellant had been called and had confirmed the letter. Colonel Nhamboteh goes on to argue that the testimony Jl 1 was backed by the fact that all the seven letters of introduction were stamped to indicate that the appellant had been called and he had confirmed them. 5.1.8 Our decision on this ground of appeal 1s as follows: The evidence on which the court-martial found that the appellant had signed the seven letters of introduction was the testimony of the two bank employees who said that, in each of the seven cases, the appellant was phoned to confirm whether or not he had issued the letters of introduction, and that he infact did confirm that he had done so. That testimony was backed by documentary evidence of the 'call-back' stamp on the letters of introduction showing that the bank had undertaken the process of phoning the author of the letter of introduction to confirm it. 5. 1. 9 The question therefore is, can a finding based on such evidence be said to be unreasonable? We do Jl2 not think so because this was evidence of witnesses who knew the appellant, one of whom knew the appellant so well that she could even recite his phone number by heart. There was nothing in the rest of the evidence to suggest that the evidence could not be relied upon. For this reason, it cannot also be said that the court martial's finding was not supported by the evidence. 5.1. l O Another question 1s, can the finding be said to involve a wrong decision on a question law. Again, our view is that it does not. In this regard, we disagree with the appellant who argues that the evidence would have only been conclusive if the prosecution had brought other documents which had the appellant's signature for the purpose of comparing that signature with the one on the letters of introduction. This is because proof of a handwriting can be based on any evidence which satisfies the court that the handwriting belongs to J13 an accused person. Hence in the case of Sithole v State Lotteries Board131 we said that the court is not necessarily bound by the opinion of a handwriting expert. 5.1.11 Therefore, this ground of appeal has not met any of the thresholds in section 138. Consequently, we find no merit in it. 5.2 Ground Two 5.2.1 Bearing 1n mind what we have said about the strength of the evidence on which the court-martial based its finding, we think that the second ground of appeal has pretty much been resolved. However, there is a very valid point that the appellant raises in that ground which we would like to deal with. 5.2.2 The appellant contends that the court-martial shifted the burden of proof to him when it lamented that the appellant had not adduced other documents to enable it compare the signature thereon with that on the letters of introduction. We agree with the appellant that there was a Jl4 misdirection by the court-martial on that point, and, had it not been for the evidence that we have considered in the first ground, this would have been an appropriate case for holding that the finding of guilt by the court-martial arose from wrong decision on a question of law. However, the finding by the court-martial was not based on the perceived failure by the appellant to adduce comparative documents: it was based on direct testimony, and documentary evidence, which stated that the appellant confirmed the disputed signature as being his. In other words, had the court-martial said that, because of the appellant's failure to adduce comparative documents, the signature on the letters of introduction was therefore his, then that would have been a finding based on a wrong decision on a question of law. But the actual basis on which the court- martial found that the appellant had signed the letters was the overwhelming evidence coming from the two J15 bank witnesses. Hence, the finding was not based on the misdirection. 5.2.3 In the circumstances, although this ground of appeal has raised a valid point, the ground has still failed to meet the threshold in section 138. 5.3 Ground Three 5.3.1 In this ground, the appellant says that the court martial misdirected itself when it did not rise to go and deliberate its findings behind closed doors. According to the appellant, this is a requirement of Rules 64 and 65 of the Defence Force (procedure) Rules contained in the Defence Act. Mr. Sitali, on behalf of the appellant, has not pointed out any real prejudice that the appellant suffered, apart from just arguing that the provisions are mandatory and that the verdict only consisted of the opinion of the president of the court, while the junior members on the panel were not given opportunity to express theirs. Jl6 5.3.2 On behalf of the prosecution, Colonel Nhamboteh has argued that, in fact, the court-martial, after hearing submissions from both sides, retired from open court from about 15:00 hours up to 19:00 hours. Counsel submits that it was during that time that the court deliberated. 5.3.3 Our decision on this ground is this: The record shows that, after the parties made their submissions, the President of the court announced that the court was going to adjourn up to 18:00 hours for the summary of the evidence and the judgment. The court then adjourned at 15:02, and only resumed at 19:00 hours. It is clear from the words of the President that the court-martial was adjourning for the purpose of going to deliberate. So, the argument by the appellant that the junior members of the court were not given chance to express their opinion does not hold water. 5.3.4 This ground therefore has no merit, as well. Jl7 5. 4 Ground Five 5.4.1 In this ground, the appellant raises two issues. The first issue is that the court-martial did not give him adequate time to prepare his defence. The second one is that the court allowed the prosecution to withhold evidence which was favourable to him. 5.4.2 On the first issue, the appellant complains that on the few occasions when the court adjourned, such adjournments were so brief that they did not serve the purpose for which the appellant had requested them. On behalf of the appellant, Mr. Sitali cited one occasion when the appellant requested for an adjournment to enable him obtain documents which were in the custody of the Zambia Air Force. According to Counsel, the court- martial granted the adjournment at 17:00, hours, but then ordered that trial resumes at 09:00 hours the following day. Counsel then wonders how the appellant was expected to obtain documents within that time. Jl8 5.4.3 On the second issue, the appellant has given three instances when, according to him, the prosecution did not bring evidence which would have been favourable to him. First, Mr. Sitali, submits that, the appellant, being an officer in administration, had signed countless official documents which the prosecutors, as serving officers of the Zambia Air Force, had access to. According to Mr. Sitali, the prosecution ought to have produced these for the purpose of comparing the appellant's signature thereon with that which was on the letters of introduction. Counsel, however, laments that the prosecution withheld these documents even though they had them in their possession. Mr. Sitali therefore urges us to apply the holding in the case of Kalebu Banda v The Peoplel11 which we have already quoted and decide that the evidence which the prosecution are alleged to have withheld would have shown that the signature on the seven letters of introduction did not belong to the • J19 appellant. Secondly, Mr. Sitali says that the witnesses who obtained loans said that they were enticed to do so by two bank agents who came to Lusaka to advertise the loans; and that the witnesses submitted initial documents, such as payslips, here in Lusaka but were later invited to Ndola where they found that other documents had been submitted. Counsel argues that it is those agents who must have signed the seven letters of introduction, and that the only reason why the prosecution did not disclose their identities, which they had knowledge of, is because that would have been favourable to the appellant. On the same holding in the case of Kalebu Banda v The Peoplel1 l, Counsel urges us to hold as submitted. Thirdly, Mr. Sitali says that the loan application form was also supposed to be signed by a representative of the Zambia Air Force, and yet the prosecution did not bring the seven loan application forms to compare the appellant's • • J20 signature thereon with that on the letters of introduction. It is Mr. Sitali's argument that the only reason that the prosecution did not produce the loan application forms is that, had they done so, it would have been seen that both the application forms and the letters of introduction were not signed by the appellant. 5.4.4 In response, Colonel Nhamboteh has pointed out that from the day that the appellant was remanded on 30th April, 2020 up to the day trial commenced on 17th June 2020, a number of events took place, one of which was that the appellant's advocate was furnished with the summary of the evidence. It is Colonel Nhamboteh's argument that it was in the course of this period that the appellant was given an understanding of the evidence against him, and that he and his advocate h ad every opportunity to identify and talk to potential witnesses for the defence. J21 5.4.5 Coming to the argument that the prosecution withheld evidence which would have been favourable to the appellant, Colonel Nhamboteh submits that there could not have been other evidence which was favourable to the appellant in the light of the evidence from PWl and PW2 that the appellant confirmed on phone that the signature on each of the seven letters was his, and which evidence was supported by the appellant's phone number appearing on all the letters. Colonel Nhamboteh further submits that the prosecution have a discretion as to what relevant evidence to adduce before court. Counsel has referred us to some authorities, such as Phiri and Another v The Peoplel4l, Fawaz and Chelelwa v The Peoplel51 , and Dallison v Caffery161. 5.4.6 We will start with the second issue which we have already resolved in the first ground of appeal. We will briefly repeat that the prosecution brought evidence which showed that the appellant, by his J22 own word of mouth, confirmed that he authored the seven letters of introduction. Clearly, there was no need for the prosecution to go further and bring a handwriting expert, or other documents on which the appellant had signed, merely to prove a fact which the appellant had already admitted to other key witnesses. So, in the light of the evidence of PWl, PW2 and the call-back stamps, we do not see how the loan application forms, other documents that the appellant had signed and indeed the disclosure of the identity of the two bank agents would be said to be favourable to the appellant. We hold therefore that there was no evidence which would have been favourable to the appellant for which the prosecution can be accused of having withheld. In the circumstances our holding in the case of Kalebu Banda v The People11 l cannot apply. 5.4. 7 As for the first issue, we have looked at the chain of events leading up to the trial. It is clear that the t ' I ► J25 5.5.3 We have said, in the second ground of appeal, that the statement by the court-martial that the appellant should have adduced evidence of documents bearing his signature was unfortunate. We have however said that the said misdirection cannot upset the court's finding that the appellant signed the seven letters of introduction. We have also said earlier that, given that the evidence before the court consisted of the appellant's own admission to key witnesses that he authored those letters, we do not see how other documents that had the appellant's signature could have rebutted the evidence of confirmation by the appellant that he authored the letters of introduction. Lastly, we agree with Colonel Nhamboteh that the appellant was given an opportunity to summon witnesses; and that was at the expense of seeking a further convening order at his instance. We do not know why, on this occasion, he did not summon Brigadier General Chipasha. Otherwise, we see no ' . ' ► J26 miscarriage of justice that occurred. We, accordingly, find no merit in this ground of appeal. 6.0 Conclusion 6.1 In conclusion, we find nothing wrong with the court martial's finding of guilt in this case. We therefore dismiss this appeal in its entirety. @-~~ ! Ha E. M. 7uridu SUPREME COURT JUDGE r F. M. Chisanga SUPREME COURT JUDGE