MUTEMBO Nchito has appealed to the High Court against Lusaka magistrate Kenneth Mulife’s ruling of February 18, 2015 that Newton Ng’uni’s withdrawal of a complaint against him did not entitle the latter to an acquittal. Mutembo, the Director of Public Prosecutions, has stated in the notice of appeal filed in court that magistrate Mulife misdirected himself in law and fact when he did not acquit him after Ng’uni withdrew a complaint against him.
Ng’uni, the complainant in this matter, is represented by former president Rupiah Banda’s lawyer Makebi Zulu, corruption-accused Keith Mweemba and Gilbert Phiri. Ng’uni’s complaints were that the DPP be prosecuted on, among other charges, planting drugs on Rupiah Banda’s supporter Brebner Changala. The case was first assigned to principal resident magistrate Aridah Chulu on February 6 but she recused herself and it was re-assigned to principal resident magistrate Mulife.
The matter was called on February 11 in the absence of the accused and magistrate Mulife heard lawyer Gilbert Phiri, who addressed the court and submitted that he and Ng’uni would rely on the complaint filed. The ruling was adjourned to February 13 at 08:30 hours but Ng’uni withdrew the complaint before the actual date of the ruling by way of a letter to the honourable chief resident magistrate copied to magistrate Mulife. Ng’uni then proceeded to Chongwe, where he filed an identical complaint before a magistrate who issued a warrant to arrest Mutembo, but Lusaka High Court judge Mwila Chitabo, after hearing submissions by Mutembo’s lawyers Nchima Nchito and Chisuwo Hamweela of Nchito and Nchito Advocates, quashed the arrest warrant against Mutembo because the Chongwe magistrate had no jurisdiction to hear the matter.
Ng’uni later raised the same allegations before magistrate Lameck Mwale. Mutembo has since filed four grounds of appeal against the ruling of magistrate Mulife, while other grounds will be raised on appeal.
He stated that magistrate Mulife misdirected himself in law and fact when he ruled that the withdrawal of the complaint by the complainant did not entitle the accused to an acquittal under section 201 of the Criminal Procedure Code Chapter 88 of the Laws of Zambia on the grounds that the complaint had not been admitted at the time it was withdrawn.
Section 201 of the CPC Chapter 88 of the Laws of Zambia states: “If a complainant, at any time before a final order is passed in any case under this part, satisfies the court that there are sufficient grounds for permitting him to withdraw his complaint, the court may permit him to withdraw the same, and shall, thereupon, acquit the accused.” – See more at: http://www.postzambia.com/news.php?id=6390#sthash.V3MAcv4G.dpuf