Arnold Chishala Mwila v People (APPEAL NO. 16,17/2009) [2014] ZMSC 269 (7 January 2014)

IN THE SUPREME COURT OF ZAMBIA APPEAL N0.16, 17 /2009 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: ARNOLD CHISHALA MWILA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Chirwa, Mwanamwambwa, Chibomba, J. J. S. On the 4th of May, 2010 and 7 th January, 2014. For the Appellant: Mr. A. C. Nkausu, Director,Legal Aid Board For the Respondent: Mr. H. Mulunda, State Advocate JUDGMENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases referred to: 1. Hahuti V. The People (1974) Z. R. 154 2. Shamwana and others V. The People (1985) Z. R. 41 at P._46 3. Lumbwe V. The People (1986) Z. R. 94. -J2- 4. Wilson Masauso Zulu v. Avondale Housing Project Limited (1982) Z. R 172 (SC). 5. The Attorney-General v. Marcus KampumbaAchiume(1983) Z. R. 1 (SC). 6. Chimbini V. The People (1973) Z. R. 191. Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia, Section 294. 2. The Criminal Procedure Code, Chapter 88 of the Laws of Zambia, Section 206. Hon. Justice D. K. Chirwa was part of the Court that heard this Appeal. He has since retired. This is therefore, a majority Judgement. On the 4 th day of July, 2008, the Appellant and another were convicted on one count of aggravated robbery, contrary to Section 294 of the Penal Code, Chapter 87 of the Laws of Zambia. The Appellant and his co-accused were sentenced to 21 years imprisonment with hard labour. The Particulars of the Offence were that the Appellant and his co-accused, on the 10th day of March, 2006, at Lusaka in the Lusaka District of the Lusaka Province of the Republic of Zambia, jointly and whilst acting together and whilst armed with a knife, did steal from Lewis Chitambala, 1 motor vehicle, a Toyota Corolla -J3- registration number ABE 1968 valued at K23,000,000.00, the property of Samson Banda and at or immediately before stealing, did use actual violence to Lewis Chitambala in or to obtain or overcome resistance to the said property being stolen. The facts of the case are that on the 10th of March, 2006, P. W.l, Lewis Chitambala, was waiting for customers to book his taxi. The taxi rank where he was operating from is located on Kafue road. At around 16 hours, he was approached by the Appellant. The Appellant told P. W.l that he was going to York Farm and that he had a Kl2, 000.00 for going and coming back. P. W. l agreed to take the Appellant to York Farm and the two of them started off. P . W. l wanted to turn into a road which is shorter but the Appellant told him not to because they would miss the person they were going to pick on the way. The two of them turned into Kajima Road from Kafue Road. And soon thereafter, they saw a man in a green dust coat stopping the taxi. This was the co-accused, Maxwell Mambwe. P. W. l asked the Appellant if the man who was stopping the taxi was the one they were supposed to pick up and the Appellant responded in the positive. P. W. l then slowed down, preparing to stop the taxi. Before P. W.l could completely stop the taxi, the co accused got into the back of the taxi. The co-accused told P. W. l to drive faster as he was late. P. W. l then told the co-accused to top up a sum of K3,000.00 and the co-accused agreed. -J4- After a short distance, the co-accused told P. W.1 to stop the vehicle. P. W. l stopped. The co-accused then came out of the vehicle and stood outside. P. W.1 asked him why he was wasting time when he had stated that he was late. The co-accused then entered the vehicle and told P. W.1 to proceed. When P. W. l tried to start the vehicle, the co-accused pointed a gun at the back of P. W. l's neck and said "today you are dead. Just surrender the vehicle so that you can go". The co-accused also produced a knife and pointed it on P. W. l's stomach. P. W.1 pleaded with the co accused not to kill him. And the co-accused told P. W .1 to drive slowly or else he would get killed. P. W.1 drove the car slowly, with a gun pointed on his head by the co-accused. When he began approaching Yark Farm, he stopped and engaged the car's hand brake and ran out of the vehicle towards the guards at York Farm. He was seen running towards the gate to York Farm by P. W.2 and P. W.3. The co accused then came out of the vehicle and went to the driver's seat, whilst pointing a gun at everyone who was at the gate to York Farm. P. W.2 and P. W.3 observed the co-accused pointing a gun at P. W.l before P. W.1 came out of the taxi. They also observed him pointing a gun at everybody at the gate when he was taking over the driver's seat of the motor vehicle. The Appellant remained in the front passenger seat. The co-accused drove the taxi away at very high speed and a lot of dust was raised in the process. When the dust settled abit, P. W.1 observed that the taxi had overturned. He -JS- rushed to the vehicle together with P. W.2, Victor Musonda, a Senior Security Officer at York Farm. P. W.1 saw the co-accused and the Appellant running out of the vehicle. P. W. l got into the taxi and followed the Appellant so that he could get his money from him. He caught the Appellant and got his money. P. W. l found a gun in the taxi. Meanwhile, a crowd of people that had just knocked off from York Farm apprehended the co-accused. P. W.2 picked up the green dust coat that the co-accused was wearing. When the Appellant was searched, he was found with a knife. The gun that was used in the robbery was discovered later on to be a toy. The co-accused and the Appellant were taken to Chawama Police Station by the members of the public who apprehended them. P. W.4 was Detective Constable Allison Phiri from the Zambia Police. He investigated this matter and arrested the co-accused and the Appellant. On the 20th of December, 2007, the Learned trial Judge found the co-accused and the Appellant with a case to answer and put them on their d efence. The evidence of the Appellant's co-accused, Maxwell Mambwe, was that on the 10th of March, 2006, he was sent by his mother to go and get some mealie meal and money from his brother at York Farm. He was told to book a taxi and that his brother was going to .. J6- pay once he reached York Farm. He stated that when he reached embassy supermarket, he saw a grey vehicle come with two people inside. These were P. W. l and the Appellant. That he told the two persons that he was going to York Farm. He stated that the two persons stated that they would take him at a fee of K20,000. That before they reached the gate to York Farm, P. W.1 stopped the vehicle and said that the co-accused should go inside and get the mealie meal and that he would find P. W. l and the Appellant outside. He stated that P. W.1 then came out of the vehicle, and forcibly removed him from the vehicle and asked to be paid half of the fare which was Kl0,000.00. That the co-accused did not have any money as he was supposed to get the money from his brother. He added that the co-accused got a phone from his pocket to try and call his brother but P. W.1 grabbed it saying it was the payment for the Kl0,000.00, he had charged him. He stated that the two of them failed to agree so they decided to go to Chawama Police Station and that they left in the same taxi. That when they got to the Police Station, the officers told them to reconcile outside. That P. W. l went outside first and that by the time the co-accused went outside, he found P. W.1 had driven away with his phone. He added that he asked the Police Officers to escort him to embassy supermarket to get his phone back but that they got upset and locked him up. He stated that they beat him and from that day, he never went home. He only became aware of the case of aggravated robbery when he was taken to Court. -J7- The evidence of the Appellant was that on the 10th of March, 2006, he left home to go to York Farm to see one Aaron Chibale to take clothes for sale. He stated that he previously worked for York Farm for about 5 years. He booked P. W. l at embassy supermarket and he was charged K15,000.00. He stated that he only had K12,000.00 and P. W.l agreed to take him for Kl2,000.00. He stated that P. W. l told him that on their way back, they would pick a customer in Kuomboka area. He added that when they moved for about 2 to 3 kilometres, the co-accused stopped the vehicle and booked it also. That the co-accused was charged K3,000.00. The Appellant stated that as P. W.1 and the co-accused were still negotiating, they reached York Farm and the Appellant paid P. W.l the K12, 000.00 and went to the gate for York Farm. He stated that when he came back, he found P. W .1 and the co-accused saying that they are going to Chawama Police Station. The Appellant stated that he decided to escort the two to Chawama Police Station and he remained in the car while the two entered the Police Station. He stated that later, a Police Officer who he did not know, collected him from the vehicle and took him to the C. I. D room. That he was later locked up and assaulted terribly. He stated that he was surprised to find out that he was going to appear in Court. He conceded knowing P. W.2 and P. W.3. He denied knowing the co accused before he was arrested. He also denied being present when the co-accused pointed a gun at P. W .1. He denied being taken to the Police Station by a mob of people. . JS- After evaluating the evidence, the learned trial Judge found that: "From the evidence, I find that the two accused persons separately booked PW1 to take them to York Farm ... On the way, the 1st Accused produced what looked like a gun and pointed it at P. W.1's head and told him 'today, you are dead, just surrender the motor vehicle so that you can go.' The Accused persons told P. W .1 to drive slowly. When PW1 managed to get out of the car, the 1 at Accused came out while pointing the gun he had at on-lookers by way of covering himself. He then took over the driving and drove off at a high speed. Unfortunately for him, the motor vehicle overturned. As a result, both of them were apprehended and taken to Chawama Police Station where they were arrested for the offence charged. There is therefore, no doubt that using a look•alike gun toy pistol and a knife, the two accused persons robbed PW1 of his motor vehicle which they had hired to take them to York Farm. The accused have denied they robbed PW1 of the motor vehicle. However, there is no doubt that their evidence is a mere concoction. Their story of how they went to Chawama Police Station does not make sense and only serves to confirm that they were taken there because they had robbed PW1 of his motor vehicle ... " The learned trial Judge found both accused persons guilty of the offence charged and convicted them. The Appellant now appeals against the conviction. There are two grounds of Appeal in this matter. These are as follows: , -J9- Ground one: The trial Judge erred In law and in fact when he found the Appellant with a case to answer on the facts before the Court. Ground two: The trial Judge misdirected himself when he held that using a look-alike gun toy pistol and a knife, ttJe two appellants robbed PW1 of his motor vehicle. On behalf of the Appellant, Mr Nkausu submitted in his written heads of argument under Ground one that the key witness in this case is P. W. l and that all the other prosecution witnesses said nothing in relation to the Appellant. He contended that the Court erred when it found the Appellant with a case to answer as the facts of the case did not support the case against him at the close o_f the prosecution case. Mr Nkausu cited the case of Hahuti V. The People 111, in support of his argument. That as the facts in the present case did not support the case against the Appellant, it was mandatory for the Court to acquit him at the close of the prosecution case. Mr Mulunda submitted, in opposition to this Ground, that the evidence of P. W. l clearly shows that he was hired by the Appellant. That P. W. l wanted to use a shorter route but the Appellant told him not to as they would miss the person they were going to. He submitted that as they were moving, they met a man in a green dust coat and the Appellant confirmed with P. W.1 .that that's the person he was following and told P. W.1 to stop. He submitted that -J10- the evidence of P. W.l, P. W.2 and P. W.3 shows that the Appellant remained in the car and did not attempt to leave the car when P. W.1 was being ordered out of the car by the co-accused. He contended that there was sufficient evidence to warrant putting the Appellant on his defence. He cited the case of Shamwana and others V. The People (2) in support of his submission. That case held that: "finality of assessment as to a witness's credibility especially as to his truthfulness should be reserved until Judgment stage after both sides have been heard." He stated that the chain of events from the hiring of P. W. l's taxi by the Appellant creates odd coincidences which would lead any reasonable tribunal to conclude that the co-accused and the Appellant were crime participles. We have looked at the evidence and considered the submissions filed herein. Section 206 of the Criminal Procedure Code, Chapter 88 of the Laws of Zambia provides that: "If, at the close of the evidence in support of the charge, it appears to the court that a case is not made out against the accused person sufficiently to require him to ma·ke a defence, .... the court shall dismiss the case, and shall forthwith acquit him." Section 206 of the Criminal Procedure Code does not require the prosecution to prove the case beyond all reasonable doubt at this stage. The prosecution just needs to show the Court that -J11- there is sufficient evidence laid to require the accused person to comment, to answer, to respond to what has been laid by the Prosecution. When we look at the evidence in this case, we have no doubt that the prosecution discharged this duty. This is because the evidence on record shows that the Appellant is the one who told P. W. l that they use a particular route so that they do not miss the co-accused. When the Appellant and P. W. l reached the place where the co-accused was, the Appellant told P. W. l to stop. P. W. l stopped and they started moving. When the co-accused pointed a gun and knife at P. W.l, the Appellant was watching and was not scared. When P. W. l ran out of the motor vehicle, the Appellant remained inside it without making any effort to run away. When the motor vehicle overturned, the Appellant run away with the co-accused. We wonder why the Appellant, who was the first person to book P. W. l's taxi, allowed another person to ride in it when he is the one who had booked it. Further, the Appellant stated that he was going to sell clothes at York Farm. However, no clothes were found inside the motor vehicle. The evidence pointing against the Appellant did not just come from P. W. l alone. P. W.2 confirmed seeing the Appellant in the motor vehicle when the co accused pointed a gun at P. W. l. P. W.2 and P. W.3 also saw the Appellant running away from the motor vehicle after it overturned. The Appellant was apprehended by the public and taken to the police station. This was confirmed by P. W.l, P. W.2, and P. W.3. However, the Appellant told the court that he was not. The Appellant was found with a knife after being searched. -J12- This case is distinguishable from the Hahuti case cited above. In that case, there was no sufficient evidence of recent possession of an animal which was found with the Appellant, eight months after it had been stolen. That's why the Court, in the Hahuti case, was of the view that the Appellant should have been acquitted at case to answer stage. We are of the view that the learned trial Judge was on firm ground when he found the Appellant with a case to answer. There were a lot of questions, as highlighted above, which needed the Appellant to answer or comment on. He was strongly linked to the robbery by the evidence laid by all the prosecution witnesses. This Ground of Appeal is therefore dismissed. Under Ground two, Mr Nkausu submitted that there is no evidence on record to establish that the two Appellants carried out the robbery jointly or in support of each other. He added that the evidence on record simply shows that that the Appellant was in the car and did nothing to prevent the robbery. He added that mere presence during a robbery is not sufficient evidence that the person so present was a robber. That the evidence that the Appellant attempted to flee and upon apprehension, was found with a knife, does not establish the fact that he committed the offence jointly with the co-accused. On behalf of the Respondent, Mr Mulunda submitted that the Learned trial Judge made findings of fact which this Court should -J13- not lightly interlere with. He referred this Court to the case of Lumbwe V. The People 131• He added that the learned trial Judge found that the stories of the co-accused and the Appellant were mere concoctions and not true. We have looked at the evidence on record and examined the submissions from both sides, relating to this Ground. The learned trial Judge found as a fact that the evidence of the Appellant was not true. He analysed the evidence before him and believed the story of the prosecution witnesses. The Judge found the evidence of the Appellant, on how he found himself at the Police Station, as not being true. We wonder why the Appellant, who claimed not to know the co-accused, would remain in a car with the co-accused when he was pointing a gun at P. W.1. We also wonder why the Appellant ran away from the motor vehicle when it overturned. If he was innocent, he would not have ran away. We also wonder why the Appellant, according to him, would escort total strangers to the Police Station for an issue which he has no idea about. Further, the Appellant claims that when he escorted P. W. l and the co-accused to the Police Station, he remained outside. We ask the question, why did he escort them then in the first place? All these questions make us believe that the evidence the Appellant gave in court was a fabrication, as found by the learned trial Judge. We cannot fault the learned trial Judge for the finding he made. -J14- The learned trial Judge had the opportunity to observe all the witnesses in this matter when they gave their evidence. We as an appellate Court, cannot lightly interfere with his findings unless we find that his findings were perverse or made without regard to the evidence on record. See: Wilson Masauso Zulu v. Avondale Housing Project Limited f4l and The Attorney-General v . Marcus KampumbaAchiume 151• This was not so in this case. Like we have already stated above, the findings made by the learned trial Judge were based on a proper analysis of the evidence on record. Further, in the case of Chimbini V. The People 161, it was held that: "Where the evidence against an accused person is purely circumstantial and his guilt entirely a matter of inference, an inference of guilt may not be drawn unless it is the only inference which can reasonably be drawn from the facts ... " On the authority of the Chimbini case, we find that the only inference to be drawn from the evidence on record is that the Appellant was part of robbery of the taxi from P. W. l. All in all, we find no merit in this Ground of Appeal also and we dismiss it. On the whole, this appeal is hereby dismissed, for lack of merit. -J15- ~ ' - - . \ . ' '~ H. CHIBOMBA SUPREME COURT JUDGE