Judgment
No. S.C. 3/02
Civil
Appeal No. 94/01
ALLAN
CIMAS MPOFU v
(1) THE
DIRECTOR OF CUSTOMS AND EXCISE
(2) THE
OFFICER-IN-CHARGE, HARARE CENTRAL (FRAUD)
SUPREME
COURT OF ZIMBABWE
EBRAHIM
JA, SANDURA JA & MALABA JA
HARARE,
JANUARY 7, 2002
G Mandizha,
for the appellant
N
Mutsonziwa,
for the respondents
SANDURA JA:
This is an appeal against a judgment of the High Court which
dismissed the appellants application with
costs.
After
hearing counsel for the appellant, we dismissed the appeal with costs
without hearing counsel for the respondent as there
was no need for
doing so. We indicated at the time that the reasons for the
dismissal of the appeal would be handed down in due
course. I now
set them out.
The
background facts are as follows. In March 1995 the appellant
was charged in the High Court with eleven counts of smuggling,
in
contravention of s 182 of the Customs and Excise Act
[Chapter 23:02],
and eleven counts of fraud. He pleaded not guilty but was convicted
on all counts. All the counts were treated as one for the
purpose
of sentence and he was sentenced to fifteen years' imprisonment with
labour. In addition, summary judgment in favour of
the Director of
Customs and Excise for the customs duty involved of $3 660 609.04
was given against him.
He
subsequently appealed to this Court against sentence only, and on
10 February 1997 the appeal was allowed to the extent
that of
the fifteen years' imprisonment with labour seven years' imprisonment
with labour was suspended on condition that he paid
the Director of
Customs and Excise the sum of $3 660 609.04 by 31 January
1998.
Thereafter,
in May 2000 the appellant filed a court application in the High Court
seeking an order compelling the respondents to
produce and make
available for inspection by him the original Bills of Entry, copies
of which had been produced as exhibits at his
criminal trial in 1995.
He indicated in that application that he wanted to inspect them
because he suspected that they were forgeries.
The
application was subsequently dismissed with costs. Aggrieved by
that decision, he appealed to this Court.
In my view,
the appeal has no merit. The record of the criminal trial indicates
that when copies of the Bills of Entry were produced
by the
prosecutor, Mr Chikumbirike,
who appeared for the appellant, objected to their production. The
prosecutor then undertook to produce the originals on the following
day.
When the
trial resumed on the following day, the prosecutor informed the judge
that he had shown Mr Chikumbirike
the original Bills of Entry, that Mr Chikumbirike
was satisfied that the documents were the originals, and that
consequently Mr Chikumbirike
no longer objected to the production of the copies tendered as
exhibits on the previous day.
When asked
by the trial judge, Mr Chikumbirike
confirmed what the prosecutor had said.
All this
took place in open court and in the presence of the appellant. The
appellant did not inform either his counsel or the
court that he
wanted to examine the documents in order to satisfy himself that they
were genuine originals.
In addition,
it is pertinent to note that the appellant subsequently appealed
against sentence only. If the authenticity of the
documents was in
doubt, he should have instructed his counsel to note an appeal
against conviction as well.
Furthermore,
when the appeal against sentence was argued in this Court in 1997,
the appellant made no attempt to apply for leave
to appeal against
conviction out of time on the ground that the documents in question
were forgeries.
It is
therefore clear, in my view, that the filing of the application in
the court a quo
was a belated attempt by the appellant to appeal against conviction,
about five years after he was convicted and sentenced, and about
three years after his appeal against sentence was determined by this
Court. The appellant is not permitted to do that by the Rules
of
this Court. There must be finality in litigation: S
v Franco & Ors
1974 (2) RLR 39 (AD).
In the
circumstances, we were satisfied that the decision of the learned
judge was correct, and that the appeal was devoid of merit.
EBRAHIM JA:
I agree.
MALABA JA:
I agree.
T H Chitapi
& Associates,
appellant's legal practitioners
Civil
Division of the Attorney-Generals Office,
respondents' legal practitioners
