LUBINDA CHALLENGES MAGISTRATE NGOBOLA’S DECISION IN THE HIGH COURT
…as he wants all documents recorded from him, Chinese businessman before Court
By New Dawn Reporter
PF vice-president Given Lubinda has rushed to the High Court challenging the decision by Lusaka Magistrate Court Stanford Ngobola who refused him to access to statements taken from a Chinese businessman Ju Wenbin and himself in 2019.
According to the petition before the High Court Registry, Lubinda wants the decision to be rendered null and void as it breaches his right to a fair trial.
Lubinda states that sometime last year around March, he was arrested after being charged for the offence of possession of property suspected to be proceeds of crime by the Anti-Corruption Commission.
He submitted that in no time he started appearing before the courts of law to answer to the charges levelled against him, and that 12 witnesses were called to support the allegations leveled against him by the State.
Lubinda stated that one of the witnesses was the arresting officer Friday Tembo from the ACC, who was ordered to make available the documents (Statements) during cross examination, saying an issue arose to whether or not the prosecution witness recorded any statement from Ju Wenbin a Chinese businessman and himself to which he agreed.
“The defence lawyers made an application before Court, for the prosecution witness (Friday Tembo) to bring before Court the following documents which are in the custody and control 1. Ordinary statement recorded in 2019 from Petitioner (Lubinda), 2. The ordinary statement recorded from Ju Wenbin and 3. a warn and caution statement from the petition,” he submitted.
Lubinda explained that Magistrate Ngobola allowed the application, but that the state only submitted a warn and caution statement without the other two ordinary statements from Ju Wenbin and himself going against the ruling.
He complained that when his lawyers raised the matter as to why the State witness and the prosecution only tendered selective documents before court and not all, Magistrate Ngobola ruled against his own decision made earlier.
“When the defence raise the issue as to why the prosecution witness and the prosecution only tendered selective documents and not all, the court rendered guidance profusely to the effect that the prosecution can do so when the accused (Lubinda) is put on his defence and not at this stage, effectively vacating the order to produce the said documents the courts had initially given,” he explained.
He said the decision by Magistrate Ngobola has rendered his ability to demonstrate and prove that he did not commit the offence handicapped.
“That the petitioners’ ability to demonstrate and prove at no case to answer stage that he has no case to answer, was and/or has been rendered handicapped given the fact that the petitioner is unable to test the veracity of the prosecutions witness testimony during cross examination testimony using the said recorded statements which are so crucial in proving and disapproving the allegations labeled against him during cross examinations.”
Lubinda submitted that his lawyers equally needed the same documents for cross examination and possible production of the same documents as part of evidence to prove his case.
“The position of the court to guide at what point the said documents can be produced vacating its earlier decision to allow the production of the said documents on the pretext of the procedure is an afront to justice and right to a fair trial accorded to the petitioner by the constitution of our land. The court disallowing the production of the documents at this stage renders it irrelevant for the petitioner in this matter to rely on the said documents when he is put on his defence, the documents are crucial on this stage. The statements ordinarily recorded by the investigative officer, who in this case is Friday Tembo, his knowledge of the facts of the case may also lead to apparent certainty when in fact there is uncertainty, which is the reason why the said documents they failed to produce are so crucial to test the veracity of his testimony and in order for the petitioner who happens to be the accused not to be prejudiced.”
He further submitted that Magistrate Ngobola breached the constitution by violating his (Lubinda) rights to a fair trial which is protected under the constitution.
“His rights to a fair trial under article 18(1) of the constitution has been violated by the decisions of the magistrate to only permit the prosecution witness referred to in paragraph 8 when the accused placed on his defence, seemly suggesting that the accused has been found with a case to answer, which effectively affect the petitioners ability to formulate a defence with documents that speaks to his case which are in custody and control of the prosecution witness. Further, it takes away from the equality of arms between the prosecution and defence and lastly it jeopardizes the petitioner’s presumption of innocence,” he stated.
Now Lubinda wants the High Court to declare the decision by Magistrate Ngobola to have violated his rights to a fair trial and that the refusal by the State to produce the document in the matter was ultra vires.
He also wants the court to declare Magistrate Ngobola’s decision of allowing the prosecution to only produce the said documents when he is put on his defence as null and void.
Lubinda wants the court to order the prosecution to avail him ordinary documents recorded in 2019 from him and Ju Wenbin among other reliefs sort.