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Court of Appeal of Zambia - 2020 February

12 judgments
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12 judgments
Citation
Judgment date
February 2020
Benard Hamwiinga v People (APPEAL 120/2020) [2020] ZMCA 241 (28 February 2020)
Conviction for murder upheld, but death sentence set aside as failed provocation amounted to mitigating circumstance; 25 years imposed.
Criminal law – Murder – Defences: self-defence, provocation, diminished responsibility (intoxication) – Appellate review of credibility findings – Sentencing: failed provocation as extenuating circumstance – Death penalty substituted.
 28 February 2020
Nkandu Musonda and Anor v People (APPEAL 203, 104/2019) [2020] ZMCA 238 (28 February 2020)
Reliance on an unproduced police statement and unsupported circumstantial inferences rendered the murder convictions unsafe.
Criminal law – Murder – Circumstantial evidence – Only reasonable inference – Admissibility of prior statements – Unproduced police statements not evidence – Aiding and abetting – Appellate review of unsafe convictions.
 28 February 2020
Agrivision Zambia Limited v John Chitindi (APPEAL NO. 039/2019) [2020] ZMCA 237 (26 February 2020)
Admission of charges and supporting facts preclude wrongful dismissal and entitlement to damages.
Employment law – Disciplinary procedure – Wrongful dismissal – Admission of charges at disciplinary hearing – Substratum of facts to support dismissal – Appellate review limited to whether disciplinary power existed and was properly exercised.
 26 February 2020
China State Construction Engineering Corporation Zambia Limited v Mwape Kaimba (APPEAL NO. 64/2019) [2020] ZMCA 212 (26 February 2020)
PPE does not absolve employer liability; employee may recover pain, suffering and reduced future earnings despite Workers' Compensation coverage.
Occupational Health & Safety — employer’s duty of care — provision of PPE not determinative; Workplace negligence — crane-hook injury; Contributory negligence and volenti non fit injuria — burden and pleading requirements; Damages — pain and suffering and loss of prospective earnings; Workers' Compensation Act s.6 — preservation of civil action and interaction with statutory compensation.
 26 February 2020
Million Hamung'ande & Others v Mulopa (Appeal 84 of 2019) [2020] ZMCA 33 (26 February 2020)
Res judicata requires same cause and parties; different parties and later dispute warranted retrial.
Res judicata — requirements: same cause of action and same parties — need to join interested persons — court should not determine merits after wrongly finding res judicata — retrial ordered.
 26 February 2020
Phinate Chona v Zesco Limited (Appeal 66 of 2019) [2020] ZMCA 38 (26 February 2020)
Grossed-up payslip amounts do not become salary; retirement gratuity computed on contractual 75% of basic pay; appeal dismissed.
Employment law – interpretation of conditions of service – service allowance – grossing-up for tax during employment versus terminal-benefit calculation – contextual construction and Income Tax Act considered.
 26 February 2020
Perward Mwansa v People (APPEAL NO. 119/2019) [2020] ZMCA 240 (25 February 2020)
Conviction based solely on an uncorroborated child witness and opportunity was unsafe; conviction and sentence quashed.
Criminal law – sexual offences – evidence of child of tender years – section 122 Juveniles Act requires corroboration; corroboration and identity; circumstantial evidence and opportunity; unsafe conviction; quash and release.
 25 February 2020
Chisumpa Liandisha v The People (Appeal 113 of 2020) [2020] ZMCA 26 (24 February 2020)
Statement of facts showed a completed taking and failed to identify the appellant's role; conviction for aggravated assault (s295) was unsupported.
Criminal law — Aggravated assault with intent to steal (s295) — Requirement that theft be unsuccessful; Aggravated robbery (s294) — completed taking — Plea/statement of facts must disclose the appellant's role and the correct offence; conviction unsafe if mischaracterised.
 24 February 2020
Joe Chama and Anor v People (APPEAL NO. 106, 107/2019) [2020] ZMCA 239 (20 February 2020)
Appeal dismissed: single-witness identification of known persons found reliable; convictions and sentences upheld.
Criminal law — Identification evidence — Single identifying witness — reliability of recognition of known persons; Murder and aggravated robbery — sufficiency of evidence; Appellate scrutiny of identification; Investigative omissions not fatal where evidence is overwhelming.
 20 February 2020
Perfect Investments Limited v Linksoft Communication System Limited (APPEAL NO. 140/2018) [2020] ZMCA 165 (20 February 2020)
Default judgment entered without mandatory endorsement/affidavit of service is a nullity; special damages require proof to avoid unjust enrichment.
Civil procedure – Default judgment – Requirement to endorse writ and provide affidavit of service (Order X r.22) – Lack of compliance renders judgment a nullity – Inherent jurisdiction to set aside irregular default judgments; Assessment of damages – proof required for special/consequential damages – nominal damages where loss not proven; unjust enrichment.
 20 February 2020
African Banking Corporation Zambia Limited (T/A BancABC) v Chat Milling Company Limited and Ors (CAZ APPEAL No. 88/2017) [2020] ZMCA 191 (19 February 2020)
Payment of K7,000,000 did not discharge a foreclosure judgment; consent order reopened redemption but respondents failed to redeem in time.
Mortgage law – foreclosure nisi v foreclosure absolute – re-opening foreclosure by consent order and acceptance of payments – equitable right of redemption – payment alleged to redeem must cover principal, interest and costs – waiver and estoppel against a mortgagee.
 19 February 2020
Lukwanda and Ors v Zambia Airforce Projects Ltd and Ors (CAZ 8 323 of 2019) [2020] ZMCA 134 (17 February 2020)
Injunction granted to protect an environmentally sensitive aquifer; State immunity does not shield an SPV from court orders.
Environmental law – interim injunction to protect environmentally sensitive recharge area; EMA s4 right to clean environment; ZEMA Protection Order and Decision Letter; pre‑conditions (WARMA compliance, hydrological study) as conditions precedent; State Proceedings Act – SPV separate legal personality not immune; irreparable environmental harm and balance of convenience.
 17 February 2020