Clark Makoni
and his wife Beverly Aisha Ndonda were accused of changing company documents
and siphoning the money after appointing themselves as directors.
They deny the
charges.
The couple had
applied for discharge at the close of the State’s case, which was rejected by
regional magistrate Stanford Mambanje who said they should be put to their
defence.
High Court
Judge, Justice Regis Dembure, differed and ruled that the essential elements of
the alleged crime had not been averred in the charge sheet, resulting in the
charge being fatally defective.
Justice Dembure
ruled that the two cannot be made to defend themselves against something that
is “fatally defective.”
The couple,
represented by Admire Rubaya, approached the High Court challenging Mambanje’s
ruling.
They described
their prosecution as a failed fishing expedition by the State.
“There is no
way the accused persons can be placed onto the defence in circumstances where
the essential elements of the offence of fraud have not been set out in the
charge sheet.
“As it stands,
the charge of fraud is barren as it lacks the essential averments required to
make the charge a valid one for fraud as codified,” Rubaya argued.
Justice Dembure
trashed the lower court’s decision saying the magistrate’s failure to determine
issue of the validity of the charges raised in the application for discharge
was a “gross irregularity and serious misdirection.”
The two had
argued that the lower court should not be allowed to resuscitate a non-existent
case which was based on fatally defective charges.
“This court
cannot, by any stretch of its powers seek to panel beat the charge for purposes
of placing the accused persons onto their defence.
“It is
entreated to avoid the temptation of making a bidding for the State.
“It laid its
bed, it must lie on it and it must never rise from it,” Rubaya argued. H Metro
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