CAVENDISH UNIVERSITY – ZAMBIA

ASSIGNMENT BRIEF AND FEEDBACK FORM

108-886
STUDENT NO
MODULE: LAW OF EVIDENCE

LECTURER: MRS GLORIA MUYUDA

MODULE CODE: CUZL221

ASSIGNMENT NUMBER: 1
DATE HANDED OUT: 22 March 2023
DATE DUE IN
12 April 2023
DAY/EVE/DL: Distance Learning
ASSIGNMENT BRIEF

Details for the Assignment

The Appellants were convicted before the Magistrate court for Theft and they are appealing for
the conviction.
The Appellants should prepare the possible grounds of appeal and the arguments. The
Respondents will prepare a possible response to the said grounds and arguments.
This assignment is intended to assess the student’s knowledge in all of the following areas.
However, greater emphasis should be given to those item marked with a

(Tutor: - please tick as applicable)

SL ASSESSMENT SKILLS Please Tick
No
1 Good and adequate interpretation of the question

2 Knowledge and application of the relevant theories

3 Use of relevant and practical examples to back up theories

4 Ability to transfer and relate subject topic to each other

5 Application and use of appropriate models

6 Evidence of library research

7 Knowledge of theories

8 Written business English communication skills

9 Use of visual (graphs) communication

10 Self assessed ‘time management’

11 Evidence of field research

Tutor’s Marks contribution

(Administrative only)

LECTURER’S FEEDBACK
1.0 INTRODUCTION
This is an appeal against the conviction of the Magistrate Court. The appellants Lucas Mbewe
and Zikalo; were charged and convicted for the offense of Theft.
Section 321(1)(a) 1 stipulates that “Any person convicted by a subordinate Court may appeal to
the High Court.
(a) Against his conviction on any ground of appeal which involves a question of law alone”.
In Mwanza v The People2 Core, J, “observed that there are four ways in which the decisions of
a Magistrate’s Court can be supervised by the High Court. The first way, which is initiated at the
option of one of the parties, is that of appeal. This is a right given to a convicted person by
statute. (Section 321 of the Criminal Procedure Code). It may also be by way of the case stated
(see section 341 of the Criminal Procedure Code).”
The appellants appeal to the High Court because the learned subordinate court was erroneous on
point of law for passing such a conviction.
APPELLENTS GROUNDS FOR APPEAL
1.1GROUNDS FOR APPEAL
The appellants appeal for the following grounds
(a) The Learned Magistrate court erred in law for admitting the evidence of the accused person’s
spouse.
(b) The learned Magistrate court erred in law for admitting illegally obtained evidence in form of
voice recording.
(c) The Learned Magistrate court erred in law for admitting evidence given by the spouse of the
accused person who has a history of mental illness
(d) The learned Magistrate court erred in law for admitting evidence of a witness with possible
interest to serve.
1.2 ANALYSIS OF LAW AND GROUNDS FOR APPEAL

- 1.2.1 The Learned Magistrate court erred in law for admitting the evidence of the
accused person’s spouse.

1
The Criminal Procedure Code Chapter 88 of the Laws of Zambia
2
(1976) Z.R 154
The facts before us are that the spouse to the accused person testified before the lower court and
such evidence given by the spouse was inadmissible. Section 151(1) (B)3 reads as “In any
inquiry or trial, the wife or husband of the person charged shall be a competent witness for the
prosecution or defence without the consent of such person-
(b) in any case where such person is charged with an offence under Chapter XV of the Penal
Code or with bigamy;”
In reference to the above section, the spouse for the appellant does not qualify to be a competent
and compellable witness because of the offense that her husband committed does not fall under
the offences under chapter XV of the Penal Code. At common law, a husband or wife was
considered incompetent to testify either for or against the other spouse because of unity in person
and interest. The only exception was in cases of personal violence against a spouse, forcible
marriage and in public interest in cases of treason In R v Mount & Metcalfe4 in this case the
wife of a co-accused gave evidence for the prosecution against her husband, and the two
appellants. Charles, J., observed on page 136: "All that evidence was absolutely inadmissible. It
has long been held that at common law a wife is not only a compellable but not even a
competent, witness against her husband’. Similarly, in The People v Mushaikwa,5 it held that
“At common law, the wife of an accused person is not a competent witness for the prosecution,
save in cases of forcible marriage and possibly treason of both of which occasions the spouse is
competent and compellable”.
The lower court erred in admitting the evidence given by the spouse, which was inadmissible.
- 1.2.2 The learned Magistrate court erred in law for admitting illegally obtained
evidence in form of voice recording.
The evidence recorded illegally, without the knowledge of the appellant, should be considered
inadmissible because such evidence contravened the right to privacy enshrined in the
Constitution. Article 17 of the Constitution 6 provides that “except with his own consent, a person
shall not be subjected to the search of his person or his property or the entry by others on his
premises.” The terms of this article are mandatory and the court has no discretion to admit
evidence procured in contravention of this article. At common law, evidence obtained illegally is
not admissible in Karuma Son of Kaniu v R7 Lord Goddard C. J. observed at page 203, that the
Board would deal with the case on the footing that there was no power in any police officer
under the rank of assistant inspector to search the appellant. Thus as it was a direct result of the
search that the ammunition was found on the appellant, it was submitted that the evidence was
illegally obtained and therefore could not be given and that the Court was bound to ignore it.
Once more in Ghana whom we both practice common law, the Supreme Court of Appeal
3
Supra note 1
4
, (1934) 24 C.A.R. 135.
5
1913 HCZ
6
Chapter 2 of 2016
7
[1955] A.C. 1977, [1955] 1 ALL E.R. 236.
overruled evidence obtained illegally as it amounted to a breach of the right to privacy. In Abena
Pokuaa Ackah V. Agricultural Development Bank8, in this case, Mrs. Abena Pokuaa, an
Appellant and employee of the Agricultural Development Bank got the contract of employment
terminated on the grounds of divulging sensitive business affairs of the bank through a telephone
conversation to a freelance journalist. After rehearing the appeal, His Lordship Dotse JSC stated,
“We hold that the delivery of the secret recorded conversation between the Appellant and
Respondent amounted to a breach of the Appellant’s right to privacy as provided in Article 18
(2)”. Justice Pwamang in concurrence stated that; “in my considered opinion the secret recording
of the Appellant was a violation of her right to privacy of her private life. It is an intrusion into
her private life beyond the extent that she had consented to because the individual should be free
to determine the manner and extent of his relations with whoever she chooses to relate to”
1.2.3 The Learned Magistrate court erred in law for admitting evidence given by the spouse
of the accused person who has a history of mental illness
The trial learned magistrate erred in law when it allowed the evidence of the spouse who was
suffering from unsoundness of mind without satisfying itself that the witness understood the
nature of the oath and was capable of giving rational testimony. However, the prosecution did
not conduct a pre-trial interview to assess the reliability of witness evidence before being called
to testify.
The lower court had the duty to first examine the witness at lucid intervals. It was supposed to be
satisfied that she possessed the requisite intelligence, that she could understand the nature of an
oath and the questions asked, and that she can give rational answers to them. In R v Bellamy9 it
was stated that “whether a person appreciates the solemnity of the occasion and the added
responsibility, to tell the truth, which is involved in taking an oath, over and above the duty to
tell the truth which is an ordinary duty of normal social conduct”. Similarly, in Ranieri v
Ranien10 It was stated, “It would seem that a court has to be satisfied that the witness has
sufficient memory and capacity to express that memory”. The lower court did not follow any of
the above and instead admitted her evidence, which is an error.
1.2.4 The learned Magistrate court erred in law for admitting evidence of a witness with
possible interest to serve.
The evidence produced before the lower court, the prosecution turned Chekelako to be the
prosecution witness, and based on the facts before us, Chekelako was fully aware of the
anomaly and had been signing as though the correct stocks were being accounted for. The
evidence of Chekelako implicated the appellants. He was in contact with the appellants during
the theft. Therefore, his evidence may be suspect and be treated as evidence of a witness with an
interest. In Musupi v The People11, where the supreme court stated as follows; “The critical
8
[Ref.No. J4/31/2014
9
1986) 82Cr. App R.
10
(1973) 7 SASR 418
11
(1978) Z.R .271
question is not whether the witness does, in fact, have an interest or a purpose of his own to serve
but whether he is a witness who, because of the category into which he falls or because of the
particular circumstances of the case may have the motive to give false evidence”. Furthermore,
the lower court could have warned itself that Chakelako was a suspect witness whose evidence
could not be relied upon for conviction. Similarly in William Muzala Chipango and Others v
The People12 The supreme court held that: “Where because of the category into which a witness
falls or because of the circumstance of the case he may be a suspect witness that possibly in itself
determines how one approaches his evidence. Once a witness may be an accomplice or have
interest, there must be corroboration or support for his evidence before the danger of false
implication can be said to be excluded”. It is thus trite that the evidence of Chekelako required
corroboration but based on the evidence on record his evidence corroborated with evidence,
which was inadmissible, the evidence of the spouse and the other evidence that was illegally
obtained through voice recording. The lower court could have considered such corroboration as a
danger of false implication and found his evidence as a witness with possible interest.
1.3 PRAYER
It is our humble prayer to this honourable court that the previous conviction by the lower trial
court is quashed.

RESPONDENT’S SUBMISSIONS IN RESPONSE TO THE APPEAL

1.0 GROUNDS OF RESPONSE
(a) The Learned Magistrate court erred in law for admitting the evidence of the accused person’s
spouse.
(b) The learned Magistrate court erred in law for admitting illegally obtained evidence in form of
voice recording.
(c) The Learned Magistrate court erred in law for admitting evidence given by the spouse of the
accused person who has a history of mental illness
(d) The learned Magistrate court erred in law for admitting evidence of a witness with possible
interest to serve
1.2 ANALYSIS OF THE LAW AND GROUNDS OF APPEAL
1.2.1 The Learned Magistrate Court erred in law for admitting the evidence of the accused
person’s spouse.
The lower Court was right in admitting the evidence of the spouse because her testimony was
corroborated. Even though it is a rule that a spouse cannot be a competent and compellable
witness against his husband, when the evidence of the spouse is corroborated the court may

12
(1978) Z.R. 304. 6
consider the evidence in Mukuleka v The People13, in this case, the wife of the appellant
testified for the prosecution before the high court in a murder case and the high court recognized
her evidence because it corroborated with other witnesses. However, the lower court did only
rely on her evidence in convicting the accused persons but rather corroborated her evidence with
the testimony of Chakelako and voice recording and documents from the supervisor. Therefore,
the court was right in convicting the appellants and the prosecution support the conviction.
1.2.2 The learned Magistrate court erred in law for admitting illegally obtained evidence in
form of recording.
Section 2 of The Evidence Act 14 provides that a document includes “any device by which
information is recorded or stored and includes books marks and drawings.” In reference to the
issue at hand, the recorded evidence was admissible and relevant. However, it should be noted
that the lower court was right in admitting the recorded evidence because the evidence was
obtained based on factual (true) and that it was vital as it ensured that justice was done, and by
admitting such evidence the court lower did not violate the right to privacy for one of the
appellants. In Luswaniso v The People15, it was held that evidence illegally obtained, e.g. as a
result of an illegal search and seizure or as a result of an inadmissible confession is, if relevant,
admissible on the ground that such evidence is a fact regardless of whether or not it violates a
provision of the Constitution (or some other law). Furthermore, in R v Bass16 where the
defendant had contested the admissibility of a statement he made without being cautioned before
an interview, it was stated that it was within the discretion of the judge to admit the statement
made in accordance with the weight it carries”.
This ground must equally fail and be dismissed because the evidence was illegally obtained and
there was no violation of the right to privacy.
1.2.3 The Learned Magistrate court erred in law for admitting evidence given by the spouse
of the accused person who has a history of mental illness
According to section 11 of the Penal Code Act, 17 ‘every person is presumed to be of sound mind
and to have been of sound mind at any time which comes in question until the contrary is
proved”.
According to the facts, the spouse was not of unsound mind at the time of her testimony and her
testimony was consistent. The court did not notice strange behavior in her conduct or attitude
when testifying. If she was of unsound, mind her husband could have raised this issue during the
trial and not on appeal since the husband could be aware of the problem. A mental person is

13
Appeal case 146 of 2011 ZMSC 8
14
Chapter 43 of the laws of Zambia
15
(1976) Z.R
16
CCA 1953
17
Chapter 87 of the Laws of Zambia
competent and comparable during lucid intervals R v Hill 18it was stated that the question to be
determined is whether the witness who has mental incapacity understands what he is saying and
understands the nature of an oath and the sanction that goes with false swearing. Such a witness
can give evidence and be categorized by the court as a witness whom the court must treat with
caution hence their evidence must be corroborated in order to be admitted as evidence, such
evidence before it is corroborated can be termed as odd coincidence but once it has been
corroborated, will be termed as strange coincidences.
The Court did not just rely on this woman’s testimony but also on the voice recordings, the
documents from the supervisor, and the testimony of Chakelako that corroborated her evidence.
Further, the facts do not state whether Eneless was of mental incapacity but was just a frequent
attendee therefore this ground of appeal should also fail and be dismissed.
1.2.4 The learned Magistrate court erred in law for admitting evidence of a witness with
possible interest.
The lower court did not error in admitting the evidence of the witness with a possible interest
because the witness did not have the interest to serve, this does not arise in this case, and there is
no bias of any kind. In Simon Malambo Choka v The People 19, It was held that A witness with
a possible interest of his own to serve should be treated as if he were an accomplice or something
more than a belief in the truth thereof based simply on his demeanor and the plausibility of his
evidence. That something more must satisfy the court that danger that the accused is being
falsely implicated has been excluded and that it is safe to rely on the evidence of the suspect
witness”. Similarly in Chipango and Others v The People 20 where it was held “where because
of the category into which a witness falls or because of the case he may be a suspect witness that
possibility in itself determines how one approaches his evidence. One witness may be an
accomplice or have an interest. There must be corroboration or support for his evidence before
the danger of false implication can be said to be excluded.
The lower court did not rely on the evidence of Chakelako, but there was corroboration with the
voice recordings, and documented evidence and it also corroborated with one of the appellant’s
spouses, such corroboration was admissible, and there was no danger of false implication to be
excluded. This ground of appeal should equally fail and be dismissed for lack of merit.
1.3 PRAYER
It is our humble prayer to this honourable court is that the previous conviction by the lower trial
court be upheld.
BIBLIOGRAPHY
STATUTES
18
(1851) 2 DEN 254
19
(1978) Z.R 243
20
(1978) Z.R 304
The Constitution of Zambia (As amended by Act 18 of 1996)
The Criminal Procedure Code Act Chapter 88 of the Laws of Zambia
The Penal Code Act Chapter 87 of the Laws of Zambia
The Evidence Act Chapter 43 of the laws of Zambia
CASES
Mwanza v The People (1976) Z.R 154
R v Mount & Metcalfe (1934) 24 C.A.R. 135
The People v Mushaikwa 1913 HCZ
Karuma Son of Kaniu v R [1955] A.C. 1977, [1955] 1 ALL E.R. 236.
R v Bellamy 1986) 82Cr. App R.
Ranieri v Ranien (1973) 7 SASR 418
Musupi v The People (1978) Z.R .271
William Muzala Chipango and Others v The People (1978) Z.R. 304. 6
Luswaniso v The People (1976) Z.R
R v Bass CCA 1953
R v Hill (1851) 2 DEN 254
Simon Malambo Choka v The People (1978) Z.R 243
Chipango and others v The People (1978) Z.R 304
Abena Pokuaa Ackah V. Agricultural Development Bank [Ref.No. J4/31/2014
Mukuleka v The People Appeal case 146 of 2011 ZMSC 8