Court name
Harare High Court
Case number
HH 289 of 2017
CA 1358 of 2013
CRB R 43 of 2012

S v Musendo & Anor (HH 289 of 2017, CA 1358 of 2013, CRB R 43 of 2012) [2017] ZWHHC 289 (10 May 2017);

Law report citations
Media neutral citation
[2017] ZWHHC 289
Coram
Hungwe J
Bere J

1

HH 289-17

CA 1358/13

CRB R 43-44/12

 

 

STANLEY MUSENDO

and

TAPIWA GIVEMORE KASUSO

versus

THE STATE

 

 

 

HIGH COURT OF ZIMBABWE

HUNGWE & BERE JJ

HARARE, 14 May 2015 & 10 May 2017

 

 

 

Criminal Appeal

 

 

 

T Mpofu, for the appellant

T Muchini, for the respondent

 

            HUNGWE J: The appellant was charged with the crime of fraud as defined in s 136 of the Criminal Law (Codification and Reform) Act [Chapter 9:23] together with one Stanley Musendo (“Musendo”). During the trial the appellant was the second accused. Despite their pleas of not guilty, they were both convicted as charged and each of them was sentenced to 10 years imprisonment of which 2 years imprisonment was suspended for five years on condition of good behaviour. A further 4 years imprisonment was suspended on condition that the accused make restitution on or before 30 June 2014 leaving an effective 4 years imprisonment if all conditions are met.

            The brief facts upon which the conviction was based can be summarised as follows. The appellant, a legal practitioner, was engaged by the complainant, Khaled Otman (Otman”), a Libyan national, in his capacity as an attorney. The initial brief was to cause an eviction of certain tenants who had breached a residential lease agreement. An attorney-client relationship blossomed. With time, the client’s portfolio included both movable and immovable assets.  He was managing the business interests of a company called Adawillia Investments (Pvt) Ltd, a commercial arm of the Libyan Government. Khaled fell ill and had to hastily leave for Libya for treatment. He believed he would be away for no more than two or so weeks. He asked his attorney, the appellant, to recommend someone to superintend over the company business whilst he was away. That person would get 10 % as commission on rentals received for executing the mandate. He would manage the haulage transport business, and so on.

            The appellant recommended one Stanley Musendo, who was later to become the first accused. An oral briefing in the attorney’s offices took place and an oral agreement was concluded. The company’s operations manager, one Kenneth Madanhi (“Madanhi”) was asked by the complainant Otman, as a director of Adawillia Investments (Pvt) Ltd, to take Musendo to their company premises in Msasa, Harare where the transport business was based on a fairly large industrial stand. Musendo was allocated one of the residential units in the 10 unit block of flats at 56 Natal Road, Avondale so that he is in close proximity with the tenants from where he would be collecting rentals. Musendo decided to lease the haulage trucks from the company himself at a rate of US$5 000-00 per month. He paid for only one month around November 2008 before Otman left. He left in November 2008.

            Otman remained indisposed for a longer period than he had anticipated. The company’s directors in Tripoli decided to delegate someone else from the Libyan Embassy to take over the supervisory duties previously held by Otman, one Ghunim.

            When Ghunim approached the appellant to collect the rentals expected from Musendo, he was toasted from pillar to post before he finally managed to contact Musendo. He was paid only US$260-00.  When he protested, Musendo, through his company P.M.C (Pvt) Ltd interdicted him from approaching or entering the Libyan companies’ premises. He then learnt of the attempt by the appellant and Musendo to take over Adawillia Investments, its assets both movable and immovable. He also learnt that the trucking business assets had been sold; that the immovable property at Msasa had been subdivided and one of the three stands sold, that no money had been collected by the appellant from Musendo. When eventually Khaled arrived in Zimbabwe, his investigations led him to conclude that the appellant had connived with the said Musendo in all this and had caused the sale of immovable property and the attempted takeover of the company by Musendo.

            They were jointly charged with fraud for which they were both convicted. They both appeal against conviction and sentence. Pending this appeal, Musendo skipped bail and has not pressed on with the appeal. This appeal is in respect of only Tapiwa Givemore Kasuso.

            Mr Rubaya of Nyamushaya Kasuso and Rubaya law firm filed a notice of appeal on appellant’s behalf. It consists of thirteen grounds of appeal against conviction and six grounds of appeal against sentence.

            The thirteen grounds of appeal are a rambling critique of the findings of fact by the trial court. Consequently the heads of argument prepared by Mr Mpofu were afflicted by the same malady. The heads of argument did not follow the grounds of appeal as proposed in the notice and grounds of appeal filed in support of the appeal against conviction. The heads consisted of the actual argument and did not comply with the High Court Rules, 1971 (see order r 238).

            The essence of Mr Mpofu’s argument is captured in his opening paragraph where he states:

            “1.1     There is no doubt that justice miscarried in this matter. The charge brought against                the second  appellant ought not to have survived the application for discharge                             appearing at pages 447-469 of the record  and leave is sought that reference be had in                this appeal to three submissions particularly relating to the manner in which the                                   evidence led for the State is analysed. Second appellant clearly committed no offence                      and the charge that he faced was clearly not established.” 

 

            Mr Mpofu urged this court to find that the appellant faced one set allegation which were not proved but ended up being convicted on an unclear basis. He states that the story relied upon by the State was false and ought to have been rejected as such. He based his submission on the claim that the court a quo found as fact that on 17 November 2008 in Otman’s presence an agreement was drafted by the appellant. Having found this as common cause, Mr Mpofu argues that it defies logic that the learned magistrate proceeded to convict the appellant on the basis of a charge which says he crafted a fictitious document after Otman had left the country. He relies on the evidence of consummation of the agreement given by Madanhi as well as what Otman told Madanhi concerning the agreement. Because the court  a quo accepted that appellant handed a copy of the agreement to Otman before he signed it and that Otman took it away, there was no obligation on the appellant to ensure that Otman read it before he signed since Otman had ample opportunity to read it before signing it.

            The reasoning adopted by the court, so Mr Mpofu argued, is that the court disagreed with the manner in which the appellant conducted his business. That did not prove that the appellant was guilty of fraud.

            The above argument by Mr Mpofu speaks to the assessment of the factual findings by the court a quo.

            An appellate court will not lightly interfere with the findings of fact by a trial court which are based on the credibility of witnesses. The reason for this is that the trial court is better placed to assess the witness from its observation as it enjoys the advantage of seeing and seeing them first hand. In S v Isolano. 1985 (1) ZLR 62 (SC) Dumbutshena CJ expressed himself on this principle this way:-

“There are many authorities of this court and persuasive authorities from other jurisdictions on the proper approach of an appellate court to the consideration of a decision based on fact. I find the remarks of LORD MCMILLAN in Watt (or Thomas) v Thomas [1947] ALL ER 582 @ p 590 B-D very appropriate in this case. He said;

 

‘The appellate court had before it only the printed record of evidence. Were that the whole evidence it might be said that the appellate judges were entitled and qualified to reach their conclusion upon the case, but it is only part of the evidence. What is lacking is evidence of demeanour of the witness, their candour or their partisanship, and all the incidental elements so difficult to describe which make up the atmosphere of an actual trial. This assistance the trial judge possesses of in reaching his conclusion, but it is not available to the appellate court. So far as the case stands on paper, it not infrequently happens that a decision either way may seem equally open. When this is so, and it may be said of the present case, then the decision of the trial judge, who has enjoyed the advantages not available to the appellate court, becomes of paramount importance and ought not to be disturbed.  This is not an abrogation of the powers of a court of appeal on questions of fact. The judgment of the  trial judge on the facts may be demonstrated in the printed evidence to be affected by material inconsistencies and inaccuracies, or he may be shown to have failed to appreciate  the weight or bearing of circumstances admitted or proved, or  otherwise to have  gone  completely wrong.’”

 

            See also Hughs v Graniteside Holdings (Pvt) Ltd. s-13-84 (unreported); S v Mlambo 1994 (2) ZLR 410 (S); Murambiwa v State HH -42-15.

            That  approach of an appellate court when invited to interfere with the factual findings of a trial judge was restated, not for  the first time, by the English Supreme Court in McGraddie v McGraddie [2013] UK  SC 58; [2013] 1 WLR 2477 and accurately summarised in the headnote:

            “It was a long settled principle, stated and related in domestic and under common law             jurisprudence, that an appellate court should not interfere with the trial judge’s conclusions on             primary facts unless satisfied that he was plainly wrong.”

 

LEMISON LJ returned to the topic in Fage UK Ltd v Chobani UK Ltd [2014] EWCA Civ 5; [2014] ETMR 26. In a vivid passage at para [114] he said:

            “The appellate courts have been repeatedly warned by recent cases at the highest level, not to interfere with findings of fact by trial judges, unless compelled to do so. This applied not       only to findings of facts but also the evaluation of those facts and inferences to be drawn             from them …. The reasons for this approach are many. They include:-

  1. The expertise of the trial judge in determining what facts are relevant to the legal issues to be decided, and what true facts are if they are disputed;
  2. The trial is not a dress rehearsal. It is the first and last show of the night;
  3. Duplication of trial judge’s role on appeal is a disproportionate use of limited resources of an appellate court, and will seldom lead to a different outcome in an individual case.
  4. In making his decisions the trial judge will have regard to the whole sea of evidence presented to him, whereas an appellate court will only be …… hoping.
  5. The atmosphere of the court room in any event, be recreated by reference to documents (including transcripts of evidence).
  6. Thus even if it were permissible to duplicate the role of the trial judge, it cannot in practice be done.” 

 

            I am of the firm view that the court a quo was entitled to come to the findings of fact that it did, which include findings on credibility of the State witnesses. These findings and inferences relating to the central issues in this appeal present a complete block to its success.

            Mr Mpofu complains that an agreement was reached on 17 November 2008 between Otman, Madanhi, Musendo and the appellant and was reduced to writing, yet the appellant was convicted on the basis of the charge which says he crafted a fictitious document after Otman had left the country. This assertion calls for closer scrutiny.

            The agreement between Otman, Musendo and the appellant was that Musendo was to superintend the complainant’s business by way of collecting rentals. Musendo would also pay rent for the haulage trucks that he was hiring from the complainant’s company represented by Otman. It was an oral agreement. Madanhi was present when this agreement was concluded. Madanhi was however, not part of the discussions leading to this oral agreement the basis upon which he was instructed by his employer to proceed to Msasa and show Musendo the assets of the company and do an inventory of the same. Madanhi was later to be approached by Musendo with a request that he signs a document on behalf of Otman who, by then, was out of the country. Madanhi declined this invitation.  

            The agreement found to have been concluded at Mantsebo & Associates was the gentlemen’s agreement which the magistrate adverted to in the paragraph relied on by Mr Mpofu. In that same paragraph, clearly in light of the evidence in the record, when the magistrate refers to the written agreement, she is referring to the one presented to Madanhi after Otman had left the country. That this must be so clearly emerges from the magistrate’s treatment of the evidence of the appellant which she rejects by pointing out that it is highly unlikely that having drafted the agreement, appellant would not have supervised its signature by the complainant since complainant was still in Zimbabwe. He had reposed his trust in him as his attorney. On this basis she rejected the claim by the appellant that complainant signed the “agreement”.

            The analysis of the evidence on whether what was agreed to at Mantsebo & Associates is what was eventually reduced to into exh 1 appears at p 23 of the record. The court carefully considered the “agreement” and correctly observed that whist it is headed “lease agreement” it had provision of a take-over of 55% of shares in Adawillia Investments and that it did not mention the US$330 000-00 and ZW$168 billion claimed to have been paid for the shares. She clearly expresses doubt as to the true nature of document that was produced as exh 1. She then comes to the only reasonable reference that the “agreement” exh 1 did not correctly represent what was agreed to by the parties to the gentlemen’s agreement. She also finds that the document was never given to Otman at any stage but may have been shown to Madanhi when he was invited to sign it on behalf of Otman. She finds that oath Otman and Madanhi never signed it (Record p 23). She finds that what Otman had asked the appellant to be the person’s mandate was nowhere in the document. She then concludes that the document was the misrepresentation in this case.

            Mr Mpofu took issue with the competence of the allegation that there was a misrepresentation, an essential element of the offence of fraud. In his view, the court made no finding in respect of this essential element. He argued that if the allegation is that the appellant crafted the document such that it did not say what the parties had agreed on, then the document did not misrepresent anything to Otman. Since he did not see it, he could not therefore have been misrepresented by it. If it misrepresented to a third party, then that party, not Otman, must be the complainant. Additionally, Mr Mpofu argued that that party must have suffered actual or potential prejudice as a result of acting on the misrepresentation.

            It needs not be repeated that there are six legal requirements that must be perfectly complied with before an accused can be convicted of a crime. These are:

            (a)        legality;          

            (b)        conduct;

            (c)        compliance with definitional elements;

            (d)       unlawfulness;

            (e)        capacity;

            (f)        culpability;

 

            See ss12, 13, 14, 15, 16, 17, of the Criminal Law (Codification and Reform) Act [Chapter 9:28] (“the Act”].

 

            At common law fraud is the unlawful and intentional making of a misrepresentation which causes actual prejudice or which is potentially prejudicial.

            Section 136 of the Act states:

            “136 FRAUD

            Any person who makes a misrepresentation –

(a)        intending to deceive another person or realising that there is a real risk or probability of deceiving another person; and

(b)        intending to cause another person to act upon the misrepresentation to his prejudice, or realising that there is a real risk or probability that another person may act upon the misrepresentation to his or her prejudice; shall be guilty of a fraud of the misrepresentation causes actual prejudice or is potentially prejudicial to another person,                                     and liable to :-

                                                (i)         a fine ……

                                                (ii)        imprisonment for a period not exceeding thirty five years or both”

 

            The first requirement is that there must be a misrepresentation. This is the conduct requirement of the crime. By misrepresentation is meant a deception by means of a falsehood. Put differently, the accused must represent to another that a fact or set of facts exists which in fact does not exist. Although the misrepresentation will generally take the form of writing or speech, conduct other than writing or speech may sometimes be sufficient, such as a nod of the head to signify consent. (S v Larking 1934 AD 91). The misrepresentation may either be express or implied, by commission or omission. In most cases misrepresentation is made by way of commission. Further, the misrepresentation must refer to an existing state of affairs or to some past event, but not to some future event. S v Feinbert 1956 (1) SA 734 (o) @ 736. In certain situations however, a person who promises to do something at some future stage implies, when making the promise that she intends fulfilling it, if this is not in fact her intention she is guilty of a falsehood regarding an existing state of affairs in that she implies that she has a certain belief or intention which she in fact does not have. (R v Persotam 1938 AD 92).

            As for the second element of the crime, namely the requirement that the misrepresentation must cause actual prejudice or be potentially prejudicial, the crime is committed only if the lie brings about some sort of harm to another. This is referred to as prejudice. In many instances of fraud the person to who the false representation is made is in fact prejudiced. Actual prejudice is, however, not required, mere potential prejudice being sufficient to warrant conviction. The prejudice need not sound in money only; or only patrimonial. Potential prejudice means that the misrepresentation looked at objectively, involved some risk of prejudice, or that it was likely to prejudice. “Likely to prejudice” does not mean that there should be a probability of prejudice, but only that there should be a possibility of prejudice. S v Hayne 1956 (3) SA 604 (A). What this means is that what is required is that prejudice can be, not will be, caused. More importantly the prejudice need not necessarily be suffered by the representee, i.e the person to who the misrepresentation is directed; prejudice to a third party, or even to the State or the community in general is sufficient; (S v Myeza 1985 (4) SA30 (T) @ p 32 C).

            It is not relevant that the victim was not misled by the misrepresentation because it is the representation’s potential which is the crucial issue (R v Dyonta 1935 AD 52; S v Isaacs 1968 (2) SA 187 (D) @ p 191. As such it follows that since potential prejudice is sufficient, it is unnecessary to require a causal connection between the misrepresentation and the prejudice. Even where there is no causal connection there may still be fraud provided one can say that the misrepresenting holds the potential for prejudice. After all a successful misrepresentation is not a requirement for fraud.

            Applying the above principles to the facts of the present matter it will be clear that several instances of misrepresentation are apparent. As the court a quo found, the parties, i.e. the complainant, appellant and Musendo, agreed that Musendo was to superintend the businesses and assets of Adawillia Investments for the short duration of complaint’s absence from Zimbabwe. After Otman left the appellant and Musendo crafted an “agreement” which did not correctly capture this agreement. It was clearly a document which was calculated to deceive whoever was expected to rely on it, it estate agents, the tenants the purchasers of land and so on.

            The contention by Mr Mpofu was that since complainant never saw this document the charge was fatally flawed and the appellant could not have been convicted on this charge without it being amended. A reading of both the common law in respect of the element of misrepresentation as well as s 136 does not support this contention.

I have demonstrated why common law principles do not support this intention. I proceed to examine s 136 of the Act that speaks of “intention to deceive another person” and “intending to cause another person to act upon the misrepresentation to his or her prejudice or realising that there was a real risk or possibility that another person may act upon the misrepresentation to his or her prejudice.”

            The wording is wide enough to include the common law position in which prejudice is not suffered only by the person to whom the misrepresentation is made with intent to deceive generally. Thus whilst it is true that Otman never acted upon the document produced after he left the country, he clearly went away under a false belief created by the appellant and Musendo that Musendo would act as his agent in supervision of the assets and business interests of Adawillia for the duration of the period that the applicant would be away. In truth and in fact the appellant and Musendo designed a scheme whereby not only would Musendo be in charge of Adawillia Investments (Pvt) Ltd business assets but would also take the proceeds for his own use. He proceeded to sell the portion of the immovable asset which the appellant must have kept to excised from the main title deed. This is the inescapable inference from the evidence which show that the appellant was a practicing attorney in the law firm that facilitated the sale of the immovable property. Appellant’s foot-prints, through his erstwhile partner, one Nyamushaya, are so vivid that the court a quo cannot be faulted for its finding that he indeed to facilitated the sale of all the assets which were sold, both movable and immovable.

            In any event, the State case is assisted by the provisions of s 196 of the Criminal Law (Codification & Reform) Act [Chapter 9: 23] which provides for the liability of co-perpetrators. The facts established at trial inexorably implicate the appellant in the commission of the crime. The appellant identified and recommended Musendo to be the agent of the complainant. He drew up the document which Musendo used to facilitate the sale of the complainant’s assets.

            When the matter was called for trial he assisted in facilitating the absence of a witness who had information as to how his partner Nyamushaya facilitated the sale of the assets together with Musendo. The circumstances from which the inference of guilt was drawn was cogently and firmly established. The circumstances of the case, taken cumulatively, do indeed form a claim so complete that there is no escape from the conclusion that within human probability the crime was committed by Musendo and the appellant and no-one else. See S v Fata 2013 (2) ZLR 635; S v Mtetwa 2014 (2) ZLR 533.

            In the circumstances I am unable to disturb the appellant’s conviction for fraud by the court a quo.

            As for sentence I did not hear Mr Mpofu to argue that the learned magistrate acted on a wrong principle or that she misdirected herself in any respect. The complainant was that the sentence of 10 years imprisonment was so harsh as to induce a sense of shock. It is trite that sentencing is within the discretion of the trial court. As long as that discretion is exercised judicially this court might not to interfere with that sentence.

            The applicant was a practicing attorney. The complainant trusted him to handle his affairs with integrity and probity. His trust was betrayed by the greed exhibited by the appellant and Musendo. This was notwithstanding that the appellant also recovered fees from the complainant. I find his moral blameworthy to be quite high. I therefore do not share the sentiment that the sentence of 10 years with two years suspended for five years and a further 4 years suspended on condition of restitution is so harsh as to induce a sense of shock.

 

            In the result the appeal against both conviction and sentence is dismissed.

 

 

            Bere J authorizes me to state that he agrees with this judgment.

 

 

 

Rubaya & Chatambudza, appellant’s legal practitioners

National Prosecuting Authority, legal practitioners for the State