AFTER three years of moving with a conviction tag on allegations that he engaged in fraud over the contested Baobab land, Lusaka lawyer Germano Kaulungombe has retained his clean criminal record and dignity, as the Lusaka High Court has quashed his two-year sentence.
Judge Ian Mabbolobbolo has condemned magistrate Felix Kaoma for jailing Kaulungombe of Messrs Marshal chambers and his legal assistant Stanley Tembo when the State failed to prove that the duo made false representation that the land they were entrusted to sale by the Nyoni family did not belong to the said family.
Kaulungombe and Tembo were convicted of one count of forcible detainer and five Counts of obtaining K600,000 from NAPSA directors by falsely pretending that they had land for sale when not.
It was alleged that Kaulungombe, Tembo and Leonard Nyoni, whilst acting together had possession of farm number F/4300/B/2 Baobab area, without colour of right and held possession of the land in a manner likely to cause breach of peace or reasonable apprehension of the peace against Joseph Chisaka, a person entitled by law to have possession of the said land.
The trio was accused of obtaining K200,000 from Ronnie Kamanya and K100,000 from Ronnie Kanyama, and Dorothy Soko, Marson Moonga, Phillip Muyumbwana and Utembele Simwinga by falsely pretending that they had land for sale.
The court acquitted Nyoni on the basis that there was no evidence that he committed the crimes.
Kaulungombe and Tembo appealed against their conviction in the Lusaka High Court on four grounds.
They argued that the trial Court erred in law and fact when it convicted them for forcible detainer when none of the ingredients of the offence were proven before it.
The duo said magistrate Kaoma erred in law and in fact when he convicted them for obtaining money by false pretenses, when the evidence of both the prosecution and defence witnesses confirmed that the subject land offered for sale existed.
“The Trial Court erred in law and fact to ignore the High Court consent settlement order executed between NAPSA directors under Cause No. 2019/HP/1329 that defined the relationship between Kaulungombe and Tembo and the said prosecution witnesses,” the appellants said.
“The trial Court erred in law and fact when it sentenced the Appellants to a harsh two year terms with hard labor when the offences were misdemeanors and finable since there were no aggravating circumstances.”
Kaulungombe and Tembo argued that the Court acquited Nyoni and surprisingly convicted them on the offence of forcible detainer, an offense that was remotely connected to them.
They said if a boundary verification had been done by the surveyors, as their Surveyor who is a defense witness had testified, the matter would not have been before Court because, the lack of boundary verification opened up a lot of speculations that led to their conviction.
Kaulungombe and Tembo submitted that they acted as advocates in the ordinary contractual transaction between the title holder Nyoni of F/4300/D and the five NAPSA Directors, DW3 to
DWT and that the contractual obligation was disposed of by the High Court under Consent Settlement Order in Cause No. 2022/ HP/ 1329 and the five NAPSA Directors restored to their previous positions before commencent of trial in the Court below.
The State argued that the prosecution ought to have established the second element of the offence by showing that Kaulungombe and Tembo had possession of the said land and the possession by the two was in a manner likely to cause breach of peace against the person entitled by law to have possession of the said land.
“The evidence on record was that the appellants were selling land on Lot F/4300/D which belonged to the Nyoni Family who authored the instructions to the appellants. Further that there is absolutely no evidence on Record to show that F/4300/D where they were subdividing does not belong to the Nyoni family,”the State said.
The State said it did not find merit in the conviction for forcible detainer and did not support the conviction.
“In terms of the first element of the offence, the Prosecution must show that the appellants made a false representation in writing or verbally. The record shows that the appellants talked about selling land in Chilanga area. Further that the instructions issued by the Nyoni family disclose that the said subdivisions were under F/4300/D whose Title Deed revealed that the said piece of land is owned by the Nyoni family and therefore it is apparent that there is no false representation at all and thus the first element was not established,”it submitted.
“While agreeing that in respect of the second element the said piece of land is capable of being stolen, the prosecution is duty bound to prove all the elements of the offence charged.”
In his judgement judge Mabbolobbolo said there is undisputed evidence that Kaulungombe and Tembo were not on the land at the time of the confrontation emanating from the boundary dispute.
“There is also evidence that when an attempt was made to do a boundary verification between the Nyoni’s property F/4300/D, Mr. Nyoni was among those who were present,” he said.
“Ironically, the Learned Magistrate acquitted Mr. Nyoni stating that there was completely no evidence touching on him and yet proceeded to convict the appellants. This is not to say that Mr. Nyoni should have been convicted too. I am of the considered view that the trial magistrate grossly misdirected himself on the facts and in the application of the law pertaining to this charge.”
He said there is no evidence that there was any false pretences by Kaulungombe and Tembo directed at the four NAPSA directors regarding the existence of land which they paid for partially, neither does he find evidence that they were deceived by the two within the meaning of Section 309 of the Penal Code.
“Having established that the Trial Court misdirected itself, I am left with no choice but to reverse the findings of fact by the learned trial magistrate. I do so because the findings were perverse and were founded on a misapprehension of facts. the trial court should have followed the guidance and acquitted, the accused in the Court below and now the Appellant,” said Judge Mabbolobbolo.
“ The upshot of my discourse is that all the grounds of appeal as advanced by the appellants have succeeded. In the result, the Conviction by the Lower Court is accordingly quashed and the Sentence imposed thereon set aside. In my analysis of the evidence, the trial Court should not even have found the appellants with the case to answer and placed them on their defence on the state of the evidence on record.”
By Mwaka Ndawa
Kalemba November 26, 2024.
