The People v Maluba Maambo (HPR/04/2025) (2 September 2025) – ZambiaLII

IN THE HIGH COURT FOR ZAMBIA HPR/04/2025 AT THE PRINCIPAL REGISTRY HOLDEN AT LUSAKA (CRIMINAL REVIEW JURISDICTION) BETWEEN: AND Before: The Hon. Mr. Justice Charles Zulu. JUDGMENT Cases referred to: 1. Chiteta v the People (1976) Z.R. 21 (HC). Legislation and other works referred to: 1. The Criminal Procedure Code Chapter 88 of the Laws of Zambia. 2. The Subordinate Courts Act, Chapter 28 of the Laws of Zambia. 3. The Digest Second Reissue Vol. 15(1) pages 167 and 200. 1.0 INTRODUCTION 1. 1 This judgment involves the exercise of review jurisdiction over proceedings in the Subordinate Court, presided by Her Worship, Magistrate M. Mwenya. The matter concerns a determination as to the propriety and correctness or otherwise of an order for forfeiture or/ and detention of the sureties, Maluba Malambo and Sydney Silomba for 30 days with effect from 26 and 27 August 2025. The sureties are alleged to have failed to secure the attendance of the accused person, Maluba Maambo at the trial of the case. 1.2 The proceedings were brought to my attention by one of the sureties' counsel, Mr. M.D. Lisimba for possible review of the said sentences/detention of the sureties. Thereafter, I summoned for the physical record. 2.0 BACKGROUND 2.1 The accused person, Maluba Maambo was arrested and charged with the offences of forgery, and theft by director. The accused person was released from custody on police bond pending trial. The sureties respectively entered into a recognizance to stand as sureties in the sum of K30, 000.00. 2.2 On July 6, 2022, the indictment was remitted to the Subordinate Court for trial. The case was assigned to Hon. M Mwenya, and the accused took plea on July, 20, 2022, and trial appears to have commenced on October 12, 2022, and now pending defence. 2.3 The proceedings, the subject of this review took place on August 26 and 27, 2025, And from the Magistrate's notes, it is ascertained that on August 26, Maluba Malambo, a surety to the accused person appeared before the court below. He informed the court that the accused left for India in July 2025. And the court remarked: 2.3.1 You are in contempt of Court. You are not going home. ..P ay the K30, 000 I will let you go. 2. 4 Thereafter the Magistrate proceeded to make the following order: -J2- 2.4.1 I will hold you in contempt for 30 days to th 26 September 2025 and K30, 000, which is in the police bond forms dated 18th March 2022. 2.5 And on August 27, the second surety, Sydney Silomba was before court. As to the whereabouts of the accused person, he informed the court below as follows: 2.5.1 I appeared in April 2025. .. you told me to bring the accused. .. I was instructed to bring the accused. .. I was not being aware of the hearing dates. 2.6 Mr. Lisimba is reported to have confirmed that, the sureties were not aware of the trial dates. The learned Magistrate then rejoined and ordered: 2.6.1 I will remand you as you are in contempt of Court for failure to bring the accused to Court for the past five months. 2. 7 Mr. Lisimba tried to mitigate by disclosing that the recognizance was respectively paid in full, but the Magistrate made this order: 2.7.1 I will remand the sureties. I will adjourn to 27th September, 2025 and order you to pay K30, 000 and you will be in custody for30 days. 2.8 Notably, section 131 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia, provides: 2.8.1 131(1) Whenever any person shall not appear at the time and place mentioned in any recognizance entered into by him, the court may, by order, endorse such recognizance and declare the same to be forfeited. -J3- (2) On the forfeiture of any recognizance, the court may issue its warrant of distress for the amount mentioned in such recognizance, or for the imprisonment of such person and his surety or sureties, for any term not exceeding six months, unless the amount mentioned in such recognizance be sooner paid or levi.ed. 2. 9 The legality or otherwise of the above stated orders by the Magistrate, are to be measured and tested against the provisions of said section 131 of the CPC. 3.0 DETERMINATION 3.1 Having stated the relevant facts, and as to exercise of review jurisdiction, it is imperative at the outset to cite section 54 of the Subordinate Court Act, Chapter 28 of the Laws of Zambia, which provides: 3.2 Every Magistrate and every officer attached to a Magistrate shall be subject to the orders and direction of the High Court; and every proceedings before a magistrate shall be subject to the direction and control of the High Court. 3.3 Furthermore, section 337 of the Criminal Procedure Code Chapter 88 of the Laws o(Zambia (CPC) provides: 3.3.1 The High Court may call/or and examine the record of any criminal proceedings before any subordinate court, for the purpose of satisfying itself as to the correctness, legality or propriety of any finding, sentence or order recorded or passed; and as to the regularity of any proceedings of any such subordinate court. -J4- _3.4 And pursuant section 338 of the CPC, the High Court upon review of the record may exercise its powers for the purposes of confirming, varying or reversing the decision or order of the Subordinate Court. The object of this supervisory power is to preserve the integrity, propriety, and the appearance of propriety of court proceedings, and to timely forestall judicial overreach, where it is unconscionably manifest. 3.5 It should be appreciated that, the object of bail or police bond is to secure, by a pecuniary penalty, the appearance of an accused at the trial of a case (s ee The Digest Second Reissue Vol. 15(1) page 167). And as regards the responsibilities of a surety, the learned editors of The Digest (supra) at page 200 submit that: the role of a surety is to actively attempt to ensure that an accused does not abscond. 3.6 It is clear and obvious from the reading of section 131 of the CPC and the object of bail/police bond that the primary penalty for a surety in breach of bail conditions or, found wanting for failure to secure the attendance of an accused is the forfeiture of the recognizance, otherwise also called estreatment of bail. And upon an order for forfeiture being made, and there is default of payment of the recognizance, the court may issue a warrant of distress. A surety may equally suffer a term of imprisonment not exceeding six months, unless the amount mentioned in such recognizance is sooner paid or levied. 3. 7 And as to the procedural application of the substantive provisions, stated in section 131 of the CPC, and how the discretion thereof is to be exercised, the case of Chiteta v the People1decided 49 years ago, turns out to be squarely handy. -JS- 3.8 The fact of that case discerned from the headnotes are that, the appellant appealed against an order of forfeiture made by a magistrate at Kasempa. He had bound himself as a surety on behalf of an accused person in a sum of K 400. 00. On the 3rd November, 1975, which was the trial date, when the case was called up, neither the accused nor the appellant were in court. Thereafter the magistrate ordered that the surety be called up to explain to the court as to the whereabouts of the accused. The appellant who was a civil servant was not in his office at the relevant time, and the public prosecutor applied for bench warrants to be issued against the accused and the appellant. The bench warrants were duly executed on the same day and both the accused and the appellant were brought before the magistrate. 3. 9 The accused was asked why he did not attend court that morning and he replied that on the day the case came up for plea, he had heard that the trial would be held on the 4th November, 1975, and that he did not check the actual date on the recognizance form. The appellant explained that he did not know when the case was to come up for trial. The magistrate rejected the explanations given by the accused and the appellant and ordered that the sums of K400 in respect of which the accused and the appellant had bound themselves by way of recognizances be forfeited under section 131 (1) of the Criminal Procedure Code, Cap. 160. Further the magistrate ordered that the accused and his surety were to undergo a term of simple imprisonment for three months unless and until the money mentioned in the recognizances -J6- be sooner paid or levied. Moodley J., quashed the order for forfeiture. In his judgment he lucidly guided: 3.9.1 The appellant should have been informed of the breach that was alleged against him and the breach should have been proved by precise evidence. He should have been asked whether he desired to give evidence or to make a statement from the dock with regard to the breach alleged and whether he had any witnesses whom he wished to call. A surety must be given an opportunity to explain his conduct in relation to the alleged breach. Where a breach of the conditions of a recognizance is alleged, the prosecution must prove beyond reasonable doubt that the surety was negligent in or that he had deliberately refrained from exercising his responsibilities in order to secure the attendance of an accused person at court. There was no such evidence in this matter to support the action taken against the surety. In the face of this misdirection, it is not possible to uphold the order of forfeiture of the surety's recognizance. 3.10 It is worthy restating that before an order for forfeiture of a recognizance is made against a surety, a surety must be afforded sufficient opportunity to be heard or show cause why the order should not be made. The nature of the breach as regards the recognizance or bail conditions must be set out to a surety. And after an explanation or evidence is adduced by a surety, the trial court must judicially make its findings as to whether the explanation given is excusable or justifiable or unsatisfactory. 3.11 In the present case, the breach was not set out to the sureties. Although the record shows that the sureties -J7- respectively made a one sentence explanation, the record does not show the Magistrate's findings/ decision as regard the explanation given by the sureties and counsel albeit short, before condemning them to forfeit the recognizance and suffer imprisonment. The neglect or failure on the part of the Magistrate to make appropriate reasoned determination rendered the forfeiture and detention incurably bad. 3.12 I should add that, the issues and the law pertaining to forfeiture of recognizance, is distinct from contempt proceedings, the Magistrate was thus misguided to comingle the purported contempt proceedings together with forfeiture of recognizance proceedings. This was oppressive and prejudicial to the sureties. 3.13 And more importantly, the two sureties having respectively paid the recognizances, to avoid imprisonment, the Magistrate was divested of jurisdiction to detain the sureties for 30 days. The order of forfeiture and detention is amenable to be set aside. 4.0 CONCLUSION 4.1 I desire to end this Judgment by reaffirming that, the object of conducting forfeiture of recognizance proceedings, is to preserve the bail system, by holding accused persons and their sureties accountable to their undertakings, provided the estreatment hearing is not tainted by arbitrariness. The mere non-attendance of an accused person at the date set for trial, does not automatically attract absolute liability against a surety; breach or dereliction of duty must be established. -J8- -.- 4.2 In the light of the foregoing, the order for forfeiture of the recognizances and detention/ sentence of the sureties for 30 days is hereby quashed for procedural illegality. And nothing interdicts the trial court to properly carry out an inquiry into the issue as guided herein. The immediate release of the sureties from detention is hereby ordered. DATED THE 2N° DAY OF SEPTEMBER, 2025 c; ~ s -- , ............................................................... THE HON. MR. JUSTICE CHARLES ZULU -19-