Alfred Simon Mwewa and Ors v People (APPEAL NO. 327, 328, 329 OF 2011) [2013] ZMSC 81 (5 February 2013)

' IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA APPEAL NO. 327,328,329 OF (Criminal Jurisdiction) BETWEEN: ALFRED SIMON MWEETWA MIKEMULEYA DERRICK MULEYA -VS THE PEOPLE 1 ST APPELLANT 2 ND APPELLANT 3 RD APPELLANT RESPONDENT CORAM: MUMBA, AG. DCJ, WANKI, JS, LISIMBA, AG. JS On 4 th December, 2012 and 5 th February, 201 3 For the Appellants: Mr. Chongwe , Senior Legal Aid Counsel For the Respondent: Mrs. M. M. Bah, Senior State Advocate JUDGMENT WANKI, JS, delivered the Judgment of the Court. CASES REFERRED TO:- 1. Chizonde -Vs- The People, (1975) ZR 66. 2. Machobane -Vs- The People, (1972) ZR 101. 3. Mavuma K. Situna -Vs- The People, (1982) ZR 119. 4. Charles Lukolongo and Another -Vs- The People, (1986) ZR 116. 5. Yotam Manda -Vs- The People, (1988 -1989) ZR 129. 6. Kabukala Abu Tambwe and Another -Vs- The People, (1987) ZR 15. 7. Fawaz and Chilekwa -Vs- The People, (1995) ZR 13. Jl The 1st and 2 nd appellants were sentenced to suffer the ultimate death sentence and the 3 rd appellant was sentenced to a reformatory following upon their conviction on one count of Aggravated Robbery, contrary to Section 294(2) of the Penal Code Chapter 87 of the Laws of Zambia by the Livingstone High Court. The particulars of offence were that on 18th August, 2009 at Choma in Choma District of the Southern Province in the Republic of Zambia, the appellants jointly and whilst acting together and whilst armed with a firearm did steal a slumber, cell phone and K7 ,000 ,000=00 cash the property of Stanford Muleya and at or immediately before or immediately after the time of such stealing used or threatened to use actual violence to Stanford Muleya in order to obtain or retain the things stolen or to prevent • or overcome resistance to their being stolen or retained. The appellants ' conviction was based on the evidence of three witnesses, namely Stanford Muleya, PWl· ' Lordwell Mudenda, PW2; and No. 37145 Detective Constable Mulenga Masho, PW3 . J2 The evidence of PW 1 was that on 17th August, 2009 as he was on his way to the abattoir he met the 3 rd appellant who told him that his father Abraham had six herds of cattle for sell. When he expressed interest in buying the animals, 3 rd appellant gave him the phone number of Abraham. Later he phoned Abraham who gave him the place where the cattle were and they arranged that he would go to Shamambo where the animals were the following day. The following day he arranged K7 ,350,000=00 and proceeded to Shamambo at 06.00 hours. When he phoned him Abraham said he would meet the 3 rd appellant. As he was going he met the 3 rd appellant who showed him the way and escorted him up to a certain point where he said he was going in the bush to answer the call of nature. From there he proceeded on his own up to the village where he found Abraham who said he had no cattle to sell. As he was returning he received a phone from Abraham who asked him to return to his village. Since he was interested in the cattle he decided to return to Abraham. As he was going he met the 1st appellant and the 2 nd appellant. When he met them, the 1st J3 appellant produced a gun and pointed it on his chest and ordered him to go in the bush with them. The 2 nd appellant was leading while the 1st appellant was behind. As they were going, the 2 nd appellant told the 1st appellant to shoot him and he was shot on the shoulder as a result he lost consciousness. When he regained consciousness, he discovered that his bag where he had carried the K7,350,000=00, his national registration card number 260426/73/ 1 and the book where he used to write details of people who sold him cattle and his voter's card was missing together with his coat and Nokia phone. Thereafter he was taken to the Hospital at Choma. His further evidence was that two weeks later he was called to Choma Police Station where he identified some of his property that was stolen and the appellants. The evidence of PW2 was that on 18th August, 2009 while at his village PWl who was injured approached him for assistance. He took PWl to Choma Hospital thereafter he reported the matter to Choma Police Station. The evidence of PW3 was that as he was on duty at Choma Police Station he was told of a shooting incident. Thereafter he J4 went to Choma Hospital where he found PW 1 who had a big wound on his right shoulder. When he interviewed him PWl gave him some information as to how he was attacked. Acting on the information he went to Chilumbi Village where he spoke to the Headman and Abraham. Later he visited the scene of the shooting where he found blood and spent cartridges. Subsequently he got information that led him to Mochipapa Settlement where he apprehended the 2 nd appellant and the 3 rd appellant. The 1st appellant was said to have been in Police Custody on a charge of stock theft. Later he interviewed the three appellants. Thereafter he arrested the three appellants for the subject offence. He warned and cautioned the appellants in Tonga language. During his investigations he unearthed the gun which was buried in the 1s t appellant's house at Mochipapa Settlement. He also recovered PWl 's national registration card, voter's card from the 2 nd appellant's house; 2 nd appellant also led to the recovery of PW 1 's coat and the small bag. The appellants elected to give sworn evidence 1n their defence. JS The evidence of the 1st appellant was that on 28th September, 2009 while in custody at Choma facing the charge of buying stolen beef, Mr. Mulenga a police officer took him from the Remand Prison to Choma Police Station where he found the other appellants whom he knew as his cousins. As they were in the C. I. D. Office PWl and another person were taken into the office. He was then shown a gun. From the C. I. D Office he was taken to the cells. As he was in the cells he was asked to provide fingerprints. The police did not explain why they wanted them to provide the fingerprints. Later, they were made to sign in a book. Thereafter they were taken back in the cells. The following day on 29 th September they were made to stand outside the cells. Other people joined them. As they were standing, two people came one of whom had a camera. One of the two was asked to touch him and the camera man took a photo. Thereafter they were taken to the Remand Prison and after two weeks they were taken to Court where he was told the charge of attempted murder. The charge was later changed to aggravated robbery. He did not agree with what the witnesses said all was lies. PW 1 told lies J6 a I ' that he shot him, he did not shoot PWl and he did not have a gun. The evidence of the 2 n d appellant was that, it was on 28 th September, 2009 when a vehicle came to the settlement. He went to see the people who were in the vehicle who included Constable Mulenga whom he knew. The said Constable Mulenga asked about the gun he usually used. The gun belonged to his neighbour Shabwela. They used to hunt together since 2008 . The gun was in his house and he explained how it came; that it was brought to him by the owner on 1st September, 2009. After the explanation he was taken to the Police Station. A bag that belonged to PW 1 was found some ten metres from his house. At the Police Station he was put in the cells. He was shown to the two people who were asked to look at him as he was a well known man and a hunter. The following day there was an identification parade. He did not attack PWl and he did not speak to him on the phone. Further, he was not called Abraham. The evidence of the 3 rd appellant was that on 28 th September, 2009 in the morning as he was taking charcoal to his J7 grandmother he met Constable Mulenga who stopped him. After asking for his name, the officer apprehended him and put him in a vehicle before taking him to the Police Station. Later, he was taken to his grandmother's house where the police conducted a search. There was an identification parade where he was identified. He denied telling PWl that his father was selling cattle and he denied knowing PW 1. After considering the evidence before it, the trial Court found that the State had proved the charge against the appellants beyond all reasonable doubt and found the appellants guilty and convicted all as charged. Thereafter he imposed the mandatory death sentence on the 1s t appellant and the 2 nd appellant. Because the 3 rd appellant was at the time a juvenile, the trial Court made a reformatory order against him. Being dissatisfied with their conviction, the appellants have appealed to this Court against their said conviction. They have advanced three grounds of appeal, namely:- 1. The Honourable trial Court misdirected himself when a wrongful approach and/ or test was applied in considering the evidence on record to convict all the three appellants. J8 \ . ' ' 2. The Honourable trial Judge erred in law and fact when the element of unfair identification parade and/ or alternative inferences available were overlooked. 3. The Honourable trial Court misdirected himself when he convicted the appellants as charged without making any finding that a firearm was used. In support of the foregoing grounds of appeal, Mr. Chongwe, Senior Legal Aid Counsel filed heads of arguments on which he relied at the hearing of the appeal. In support of ground one of the appeal Mr. Chongwe , submitted that there is sufficient basis in law and fact to disturb the verdict arrived at by the trial Court. Counsel pointed out that this is premised on the following: The trial Court stated at page 42 of the record of appeal that the credibility and reliability of evidence of PW 1 was fortified by the fact that, documents (national registration card, voter's card and an exercise book PWl carried) were found at the 2 nd appellant's house and it was 2 nd appellant who led PW3 to their recovery. Mr. Chongwe contended that the trial Court fell into error. Counsel argued that from the defence evidence especially that of the 2 nd appellant, it is clear that the evidence relied upon to fortify the trial Judge's finding/belief was no common cause. It Jg was evidence which was in dispute, considering that the evidence of PWl and PW2 was in conflict with that of the 2 nd appellant. According to Mr. Chongwe whether or not the documents were found near the 2 nd appellant's home is a question that was not adequately resolved to form a solid foundation for finding PW l's testimony to be, reliable. Further, Counsel argued that the trial Court did not indicate in the Judgment why it preferred the evidence of the prosecution witness; neither did it set out reasons for rejecting the evidence of the defence on the issue concerning documents. Counsel contended that it was necessary to state why one witness was preferred against the other in the Judgment; and that failure to state reasons is a misdirection that goes to the very root of the verdict. Mr. Chongwe submitted that demeanour of a witness is an item of evidence which must firstly be observed when a Court is faced with two conflicting statements and has a duty to arrive at which statement to believe. Reliance was placed on the case of CHIZONDE -VS- THE PEOPLE. (1l JlO Secondly, be included in the record or at least the Judgment of the trial Court and the absence of any evidence to support an adverse finding on demeanour in the record or Judgment is a serious irregularity; the case of MACHOBANE -VS- THE PEOPLE (2) was cited in support. Counsel argued that there is manifest misdirection which renders the verdict unsafe especially in the light of the conclusion before the evidence of the appellants was restated on page 38:- "In their defence, the accused made flat denials of any involvement in the alleged aggravated robbery." Mr. Chongwe submitted in the alternative that the appeal must succeed because the Judgment of the trial Court does not show on its face that adequate consideration has been given to all relevant material that has been placed before it. Counsel contended that no sufficient consideration has been given to evidence favourable to the appellants on face of Judgment. Reliance was placed on the case of MA VUMA SITUNA -VS- THE PEOPLE. (3l In relation to ground two of the appeal, Mr. Chongwe submitted that ground two, is argued in the alternative to ground Jll • ',1 . one of the appeal. Counsel pointed out that all the appellants testified that they were all shown to PW 1 on the day before the identification parade was conducted. Mr. Chongwe argued that this practice of identifying witnesses seeing accused before an identification has been categorically condemned by this Court, the case of CHARLES LUKOLONGO AND OTHERS -VS- THE PEOPLE (4l was cited. Counsel contended that with identification of a single witness thus discredited, the only evidence against the 2 nd appellant was the stolen property. He submitted that if the Court upholds the lower Court's finding that the stolen property was found near 2 nd appellant's home; the appellants' argument is that the trial Court failed in its duty to consider various alternative inferences which could be drawn. Reliance was placed on the case of YOTAM MANDA -VS- THE PEOPLE (5l where the Court held that:- "It is a general principle that a Court can only draw an inference of guilt if that is the only irresistible inference that can be drawn on the facts." It was argued that in the YOTAM MANDA (5) case even if the accused knew where the stolen wrist watch was to be found, the J12 Appellate Court did not accept the State's argument that because the appellant knew where the stolen writ watch was to be found, that indicated that he must have participated in the murder. Counsel pointed out that the Court having found that the possibility (inference) that accused was a receiver of the property stolen was not excluded, allowed the appeal and the conviction for receiving stolen property was substituted for that of murder in the YOTAM MANDA t5l case. Mr. Chongwe submitted that if the 2 nd appellant is not acquitted under ground one of the appeal or on account of discredited identification evidence , the conviction of receiving or retaining of possession of stolen property may be substituted for that of aggravated robbery or at all. In support of ground three of the appeal, Mr. Chongwe pointed out that PWl testified that the 1st appellant was the one who shot him. However, the 1s t appellant in his evidence testified that PWl lied about being shot at by the 1s t appellant; and further that he had nothing to do with a gun. The evidence of the 1st appellant was substantially the same as that of the 2 nd appellant. J13 Counsel submitted that when it came to the Judgment after the evidence of the appellants was reproduced, the trial Court recited the evidence of PW 1 when considering the whole evidence on record. It was at this stage that it was stated that:- "The doctor who attended to PWl was of the view that PWl had gunshot wounds for which he was treated." It was argued that this does not suffice as a finding by the trial Court that the appellants were armed at the time of the robbery (though clearly the 3 rd appellant was not at the scene). Counsel submitted that it is highly probable that the 3 rd appellant could not have known 1st appellant or 2 nd appellant had a firearm which they intended to or actually later used. Mr. Chongwe submitted that although PW 1 alleged that one of the appellants had a gun, there was no proof that the weapon was a gun within the definition of the Firearms Act. The case of KABUKALA ABU TAMBWE AND ANOTHER -VS- THE PEOPLE (6l was cited in support. Counsel contended that there was no finding of use of any firearm in the Judgment and PW l's evidence on that score was disputed. J14 . . In response Mrs. Bah filed submissions on behalf of the respondent on which she relied at the hearing of the appeal. Counsel submitted that the State supports the conviction, and that the lower Court was on firm ground when it convicted the appellants and sentenced th e 1st appellant and 2 nd appellants to death and the 3 r d appellant admitted to Katombora reformatory for purpose of reform. Mrs. Bah proposed to respond to grounds one and two of the appeal as one. Counsel contended that the trial Court did not misdirect itself in arriving at the conclusion of convicting and sentencing the appellants as afore mentioned. Mrs . Bah submitted that there was overwhelming identification evidence and considering the evidence in totality. Counsel contended that it was safe for the trial Court to rely on it. Kn support the Court was referred to the case of THE PEOPLE -VS- ROBERT PHIRI AND TENSON SIAGUTU(8l where it was held that:- "(i) The adequacy of evidence of personal identification always depends on all the circumstances surrounding each case which must be decided on its merits; JlS . . (ii) A person is said to have made on honest mistake when he or she mistakes A for B both of whom may have similar features. Stress of the moment is the most common cause of persons making honest mistakes." Counsel contended that the prosecution evidence given by PW 1 clearly shows that the identification evidence of the 1st appellant and 2 n d appellant is not mistaken identity. Mrs . Bah pointed out that PWl was further able to identify the appellants on identification parade; and PWl was later able to identify the appellants before the trial Court. Counsel submitted that the prosecution did prove the case beyond reasonable doubt as the evidence of PWl though a single identifying witness was not mistaken and very safe to rely on. And that the trial Court was on firm ground to convict the appellants as charged. The case of MUVUMA KAMBANJA SITUNA -VS- THE PEOPLE (9l was referred to where it was held that:- "(i) The evidence of a single identifying witness must be tested and evaluated with the greatest care to exclude the dangers of an honest mistake; the witness should be subjected to searching questions and careful note taken of all the prevailing conditions and the basis upon which the witness claims to recognize the accused; (ii) for a positive and reliable If the opportunity identification the follows then possibility of an honest mistake has not been ruled is poor that it J16 ' > l • • is some other connecting link out unless there between the accused and the offence which would render mistaken too much of a identification coincidence; (iii) Hearsay evidence which does not fall within the exceptions in the rule and which does not come within Section 4 of the Evidence Act Cap 170, is inadmissible as evidence of the truth of that which is alleged; (iv) The Judgment of the trial Court must show on its face that adequate consideration has been given to all relevant material that has been placed before it, otherwise an acquittal may result where it is not merited." Mrs. Bah contended that the identification evidence in this case was positive and reliable given the opportunity that PWl had with the attackers. Counsel further submitted that a firearm was used and was recovered from the 1st appellant. It was pointed out that the defence that was given by the 1s t appellant was an afterthought as his evidence did not arise during cross-examination of the - prosecution witnesses in relation to the firearm. The Court was therefore , urged to uphold the conviction and sentence of the Court below. We have considered the grounds of the appeal; the heads of argument on behalf of the appellants; the submissions on behalf of the respondent; and the authorities that have been referred to. J17 We have also considered the Judgment of the Court below that has been appealed against. In ground one of the appeal the appellants have attacked the Court below for applying a wrong approach in considering the evidence on record to convict the appellants. It was argued on behalf of the appellants that the trial Court fell in error when it held that the reliability of PW l's evidence was fortified by the fact that documents that belonged to him which were stolen during the robbery were found at the 2 nd appellant's house and it was the 2 nd appellant who led PW3 to their recovery. It was contended that the evidence of the finding of the said documents was not common cause as it was in dispute; and that the trial Court did not indicate why it preferred the evidence of the prosecution witnesses, neither did it set out reasons for rejecting the evidence of the defence on the issue concerning documents. On the other hand it was contended on behalf of the respondent that the trial Court did not misdirect itself in arriving at the conclusion of convicting the appellants. It was submitted J18 that there was overwhelming evidence in the case and considering the evidence in totality it was safe for the trial Court to rely on it. We have examined the totality of the evidence as contained 1n the record of proceedings and indeed the Judgment of the Court below. The evidence of PWl revealed that he identified his attackers as the 1st appellant and 2 nd appellant, and that the 3 rd appellant was the person who gave him the phone number of the person called Abraham whom he said was his father and who led PW 1 to where he was attacked. The evidence of PW3 revealed that the 2 nd appellant led to the recovery of the PW l's national registration card, voter's card, the exercise book, his coat and the bag and the firearm which was buried. We have noted that the 2 nd appellant did not dispute in his evidence that he led to the recovery of PW l's national registration card, voter's card and the exercise book. It cannot therefore be true as submitted on his behalf that it was not common cause or that it was disputed. J19 • - f. I I fl We have further noted that the 2 nd appellant confirmed that the firearm was found in his house, but that it was given to him by the owner as security. However, we wonder why if that was true, he could have buried the firearm. The 2 nd appellant also confirmed that the bag and the coat were found near his house. With such evidence the Court below cannot be faulted for holding as it did. Further as alluded to above, the 2 nd appellant did not dispute having been in possession of PW l's items including the national registration card, voter's card and exercise book; he confirmed being found with the firearm that PW 1 said was used, in his house; and that the coat and bag were found near his house. There was therefore no defence given by the 2 nd appellant that the Court below failed to consider or on which to give reasons why it believed the evidence by the prosecution witnesses as against that adduced by the 2 nd appellant. On the evidence adduced before the Court below we have found that the evidence of identification was of good quality that it eliminated the dangers associated with single identifying witness' evidence. The incident took place during the day, the J20 Ill , l 1 ~ appellants' faces were not covered and PWl had sufficient opportunity to see the faces of his attackers before he was shot. We have noted that the Court below warned itself of the dangers inherent in relying on the evidence of a single identifying witness. In the circumstances, we find no merit in ground one of the appeal. It is accordingly dismissed. In ground two of the appeal the appellants have attacked the Court below for overlooking the element of unfair identification parade . It was argued on behalf of the appellants that in the alternative that, the appellants testified that they were all shown to PWl on the day before the identification parade was conducted. On the other hand, it was argued on behalf of the respondent that the identification evidence 1n this case was positive and reliable given the opportunity that PWl had with his attackers. J21 .. ' ''· t ' . .. We have examined the evidence of PWl as contained in the record of appeal. We have noted that 1n his evidence PW 1 informed the Court below that, we quote:- "The police asked me if I could identify the people who attacked me. I said yes. He took me to the cells and there were 15 people and I was asked to identify the people who attacked me. The people stood up in a line along the wall scattered. I touched the people who attacked me three of them ...... '' Further, examination of PW 1 's evidence 1n cross examination has revealed that his evidence as quoted above was not challenged as he was not cross-examined on that issue . We have also noted that the issue of unfair conduct of the identification parade was not a subject of the submissions on behalf of the appellants in the Court below. We have therefore found that the issue of the unfairness of the identification parade has been raised for the first time in this Court. We find no merit in ground two of the appeal. It is accordingly dismissed. In ground three of the appeal, the appellants have attacked the trial Court when it convicted the appellants as charged without making any finding that a firearm was used. J22 It was submitted on behalf of the appellants that the issue of a firearm being used on PWl was disputed by the appellants and that there was no finding of use of any firearm in the Judgment. On behalf of the respondent it was submitted that a firearm was used and was recovered from 2 nd appellant, and that the defence that was given by 1st appellant was an afterthought as his evidence did not anse during cross-examination of the prosecution witnesses in relation to the firearm. We have examined the evidence that was adduced before the Court below as contained in the record of appeal. We have noted that, the evidence of PW 1 that the appellants had a firearm which he later identified in Court and that 1st appellant shot him was not challenged in cross-examination. PW 1 's evidence that he was shot with a firearm was supported by the medical evidence; and by the finding of a spent cartridge at the scene by PW3 whose evidence on that aspect was not challenged in cross-examination. There is no doubt therefore, that the evidence of use of firearm was overwhelming. A firearm was fired on PWl who sustained a gunshot wound and a spent cartridge was found at the scene. J23 The fact that the Court below did not make any finding on the use of a firearm is in our view not fatal. The appellants were charged with aggravated robbery under Section 294(2) of the Penal Code and the particulars stated inter alia that while they were armed with a firearm , they stole. The Court below convicted them as charged . There was therefore no prejudice occasioned to the appellants. - In the circumstances we find no merit in ground three of the appeal. It is accordingly dismissed. The three grounds of the appeal having failed the appeal against conviction, is dismissed. The conviction and the sentences imposed on each of the appellants are confirmed . /JJ/ ·µL' .. , ....... /: .f>.f. ............. . M. E . Wanki, SUPREME COURT JUDGE F . N. M. Mumba, ACTING DEPUTY CHIEF JUSTICE ,,, ) . ,/ ,.,/' ,' A - L / ........ .!::.~ . ... ... ........... .. . /,:7~ rf L .. b :.._ ACTING SUPREME COURT JUDGE lSlm a , J24