Augustine Mwamba Mbuzakosi and Ors v The People (APPEAL No. 48/2022; APPEAL No. 49/2022; APPEAL No. 50/2022) [2023] ZMSC 20 (16 November 2023)

IN THE\SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (CRIMINAL JURISDICTION) APPEAL No. 48,49,50/2022 BETWEEN: AUGUSTINE MWAMBA MBUZAKOSI KELVIN MWANSA FRANCIS KA YOMBO AND THE PEOPLE pUf'LIC OF· REME C©URJ-o JUDICIARY 16 NOV 2023 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT RESPONDENT CORAM: Hamaundu, Mutuna and Chisanga, JJS On 1 st -November, 2022 and 16th November, 2023 For the 1st Appellant: Mr J. K. Matend_e, Legal Aid Counsel For the 2 nd & 3 rd Appellants: Mrs K. C. Bwalya, Legal Aid Counsel For the State: Mr C. Baka, Deputy Chief State Advocate JUDGMENT Hamaundu, JS delivered the judgment of the Court. Cases referred to: 1. Zulu v The People (1977) Z. R. 151 2. Nswana v The People (1988-1989) Z. R. 174 3. Mutale & Phiri v The People (1995/1997) Z;R. 227 4. Saluwema v The People (1965) Z. R. 4 5. Phiri & Others v The People (1973) _Z. R. 47 I J2 6. Chabala v The People (1976) Z. R. 14 7. Yotam Manda v The People (1988/1989) Z. R. 130 8. Kalonga v The People (1988/ 1989) ZR 90 Legislation referred to: The Penal Code, Chapter 87 of the Laws of Zambia, Sections 294(1) and (2) 1.0 INTRODUCTION. 1.1 The three appellants appeal against their conviction for the offences of aggravated robbery and murder 2.0 THE FACTS 2.1 On 2 nd ·July, 2012, mourners attending burial of their loved ones came across the body of a man among the graves. The body was later identified to be that of Justine Kaseloki, the deceased in this matter. He was the driver of a motor vehicle which belonged to Betty Hachendela (PW3) and operated as a taxi. The deceased had not been seen since the previous day on 1st July, 2012. 2.2 Postmortem examination on the body revealed that Justine Kaseloki had been murdered. • ' 2.3 The break-through in the police investigation case came J3 about two weeks later when, upon examining the activities on the deceased's phone, the police found that shortly before the deceased's phone went off on the night of his murder it had been in communication with that of the 1st appellant. The police then arranged to apprehend the 1st appellant. On the day that the police raided the 1st appellant's house, they found the 2 nd and 3 rd appellants inside; according to the prosecution witnesses, the two were hiding under a bed. 2.4 Upon interviewing the· three suspects, the police found that, at some brief point in time, the 2 nd and 3 rd appellants had been in possession of the deceased's phone and that they had disposed of it to a phone vendor within the township. The two appellants led the police to the vendor where, after a while, the phone was retrieved. 2.5 The police also found that the 1st appellant had briefly been in possession of the car that the deceased had been driving, and that he had then driven it across the border, into the Democratic Republic of Congo; to be sold. The 1st • I J4 appellant led the police into the Democratic Republic of Congo where the vehicle was found parked in the Congolese Customs parking yard. The 1st appellant again led the police to the Democratic Republic of Congo, using an undesignated route, where the number plates for the vehicle were retrieved from a bush into which he had thrown them. 2.6 The trio were then arrested for the offences of murder and aggravated robbery. 2.7 The appellants do not deny having been in possession of the motor vehicle and the phone, respectively, but they vehemently deny having participated in the crime during which the two items were stolen. 2.8 The 1st appellant's version of the events is as follows; that on 2nd July, 2012, around 20:00 hours, the 2nd and 3rd appellants brought to him two people who introduced themselves as Chankwe and Peter; that the two people were in possession of the motor vehicle in issue which, according to their claims, had belonged to their deceased I JS aunt; that the two people also claimed that the family wanted to sell the car; that he then arranged with a customer who held the military rank of Major, and lived across the border in the Democratic Republic of Congo, to buy the car; that it was decided that he would take the two sellers and the car across the border to meet the buyer; that before they started off, the two sellers invited him to see where they lived, which was in Racecourse compound, within Kitwe; that he then took them across the border where they met the buyer; that it was then discovered that · the registration document which the sellers possessed was not for that motor vehicle; that the buyer however gave the sellers a sum ofUS$1,600 as part payment, but told them to come back to Zambia to collect the correct document and then go back to the Democratic Republic of Congo together with the 1st appellant so that he would witness the completion of the transaction; that the 1st appellant was then given transport money to travel back to Zambia, which he did, while the two sellers also returned to Zambia, promising that they would go to Lusaka to pick • I J6 the correct document and then, on their way back to Congo, they would pick up the 1st appellant; that the 1st appellant then started waiting for the return of the two men until on the 18 th July, 2012, in the evening, when the 2 nd and 3 rd appellants came to his house to find out what had become of the sale of the car in Congo; that when he explained what had happened, the two did not believe him and demanded that he takes them to the buyer in Congo to verify the explanation; that, at that time, he thought that the 2 nd and 3 rd appellant belonged to the same family as the sellers; that when he tried to explain to them that the buyer would not deal with them, they became annoyed and declared that they would not go anywhere; and, that the 2 nd and 3rd appellants then spent the night at his house and were found there when the police raided the house the following morning. 2.9 The 2 nd appellant's defence was this; that he used to engage in activities of moulding bricks out of mud; that he had come to know the 1st appellant in 2011 when the latter came to visit the 2 nd appellant's fellow tenant at their place • I J7 of residence; that, on the other hand, he knew the 3 rd appellant as the grandson of his landlord; that, on the 2 nd July, 2012, two men came to the place where he was molding bricks and asked for the residence of the 1st appellant who had advertised his services as a traditional healer on a poster nearby; that he, together with the 3 rd appellant, led the two men to the 1st appellant's home; that they left the men there and came back to their place of business; that he never dealt with the cell phone which is alleged to have been stolen from the deceased; that on 18th July, 2012, he worked until he ran out of oil around 22:00 hours; that he decided to knock off and leave his tools at the 1st appellant's residence; that there, the 1st appellant offered him some beer, which he drank, and then he spent a night at the 1st appellant's house; that, early the next morning, the police raided the 1st appellant's house and he (the 2 nd appellant) was apprehended in the process. 2.10 The 3 rd appellant's version was not much different from that of the 2 nd appellant. He confirmed that on the 2nd July, 2012, he was molding bricks with the 2 nd appellant. I J8 He also said that two men came to their place of business, with a motor vehicle. He said that he accompanied the 2 nd appellant to escort the two i,nen to the 1st appellant's house. He told the court that, along the way, the two men offered a phone for sale in order for them to raise money to buy fuel. The 3 rd appellant said that he then bought the phone at K50.00, and that he subsequently sold it because it was giving him problems. 2.11 The 3 rd appellant, again, confirmed that he went with the 2 nd appellant, on the 18th July, 2012, to the 1st appellant's . . house to leave their tools. He told the court that he, too, drank beer at the 1st appellant's house and spent a night there. He confirmed that he was found in the 1st appellant's house when the police raided it, and he was apprehended together with the other two. 3.0 THE TRIAL JUDGE'S DECISION 3.1 The learned judge dismissed the explanations by all the appellants on the ground that there were too many odd coincidences which rebutted them. In the case of the 1st I .. J9 appellant, the judge noted that on the fateful evening there was communication between the deceased's phone and that of the 1st appellant; and that the latter's phone was, at that time, in the location of Kamatipa area of Kitwe, an area which the judge took judicial notice of as being close to the cemetery where the deceased's body was found. As for the 2 nd and 3 rd appellants, the judge noted that they were .identified by the person to whom the deceased's phone was sold. He also noted that they were apprehended at the 1st appellant's house. In the judge's view, these pieces of evidence connected all the appellants to the commission of the offence. He therefore came to the conclusion that the three appeVants had formed a common intention to commit an unlawful act which ended in the gruesome and merciless murder of the deceased. 3.2 The judge then convicted the three appellants on both counts, and passed a sentence of death for each count. 4.0 THE APPEAL 4.1 The 1st appellant's grounds of appeal are three, and they read as follows: • JlO "1.0 The lower court erred in law and fact when it convicted the 1st appellant when guilt of the l8' appellant was not the only inference that could be drawn from the circumstantial evidence before the lower court. 2.0 The lower court erred in law and fact when it made a finding that the convicts manifested an intention to prosecute an unlawful act, which finding was not supported by the evidence before the court. 3.0 The lower court erred in law and fact when it sentenced the is• appellant to death contrary to the prescribed sentence of years to life imprisonment applicable in the absence of a firearm being used." 4.2 The 2 nd and 3 rd appellant's appeals are based on two. grounds. These read: "Ground One The trial judge erred in law and in fact when the court convicted the 2nd and 3rd appellants based on circumstantial evidence which did not take the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt. Ground Two The trial judge erred in law when he imposed a death sentence under section 294(1) of the Penal Code." , • • Jll 4.3 All the appellants contend that they were convicted on circumstantial evidence which did not take this case out of the realm of conjecture. They rely on the case of Zulu v The People111 for their position. 4.4 Submitting on behalf of the 1st appellant, Mr. Matende, the learned Legal Aid Counsel, argues that, out of all the evidence that the prosecution presented, only four pieces of evidence tended to link the 1st appellant to the commission of the offence. Counsel outlined those pieces of evidence as; (i) the fact that on the 1st July, 2012 there was communication between the 1st appellant's phone and that of the deceased; (ii) the fact that all the three appellants were apprehended from the 1st appellant's house; (iii) the fact that the 1st appellant led police officers to the recovery of the number plates in the Democratic Republic of Congo; and J12 (iv) the fact that, again, the . 1st appellant led police officers to the recovery of the motor vehicle itself at the border post, on the Congolese side. 4.5 Mr. Matende admits that indeed the proper view of the evidence before the court below was that the 1st appellant had come into possession of the car that had been driven by the deceased; but counsel quickly points out that that fact in itself did not prove that the 1st appellant took part in the crime. He relies particularly on the case of Nswana v The Peoplel2 1 which holds that where a finding of guilt is dependent upon the drawing of an inference from the possession of recently stolen property, the inference should not be drawn unless it is the only one reasonably open on the particular facts of the case. The case goes on to hold that, in this regard, any explanation offered by the accused person must be considered; and that where none is offered, or that which is offered turns out to be a lie or one which could not reasonably be true, the court is still obliged to consider what other inference, if any, can reasonably be drawn. - 4.6 Mr. Matende submits that, in this case, the 1st appellant's J13 explanation that he received the car from the two men, and sold it on their behalf in the Democratic Republic of Congo, was unshaken; and could be true. Counsel therefore argues that this tended to raise an inference that the 1st appellant came into possession of the car innocently. Mr Matende goes on to argue that, in these circumstances, it could not be said that the only reasonable inference that could be drawn on the facts was that the 1st appellant participated in the crime. Therefore, according to counsel, the trial court should have adopted the inference that was more favourable to the 1st appellant, as laid down in the case of Mutale & Phiri v The Peoplel31; this means that the trial court should have found either that the 1st appellant came into possession of the car innocently or that, not having come into innocent possession thereof, he merely received or retained that vehicle believing it to have been stolen. It is, hence, counsel's submission that, because of the reasonable possibility of the alternative inferences, the prosecution did not discharge its burden of J14 proof; and the 1st appellant should consequently not have been convicted of the two capital offences, but only on the minor offence of receiving stolen property. Counsel cited the case of Sahiwema v The Peoplel4l to support that argument. 4. 7 As regards the piece of evidence that the deceased's last communication on his phone was with the 1st appellant, Mr. Matende submits that this was not enough to link the 1st appellant to the commission of the offences because there were several possible innocent reasons why the communication between the deceased and the 1st appellant was the last one recorded. He goes on to suggest, by way of example, that the battery for the deceased's phone could have become drained immediately after the communication. 4.8 In the second ground of appeal, Mr. Matende has raised issue with the trial court's statement that the three appellants had manifested a common intention to commit an unlawful act. He points out that, apart from the fact that the three appellants were apprehended from the , JlS house of the 1st appellant, some two weeks after the offence had been committed, there was no evidence on which that statement was based. Counsel has argued that the trial judge was not permitted to infuse his own inferences into the evidence of the prosecution. He cites the case of Phiri and Others v The Peoplel5 l as support for his submission. 4.9 Mr. Matende, therefore, submits that, given the foregoing arguments, the 1st appellant ought to have been acquitted. He, accordingly, urges us to allow the 1st appellant's appeal. 4.10 On behalf of the 2 nd and 3 rd appellants, Mrs. Bwalya, of Legal Aid, submits that the only evidence that was linking her two clients to the case was the deceased's phone. It is her submission that the 3 rd appellant explained that he bought the phone from the two men who had come with the deceased's car. According to counsel, that explanation was reasonably possible and it meant that the 3rct appellant could only be liable for being in possession of property believed to have been stolen. ' 4.11 Coming to the sentence, all the three appellants raise a J16 common issue against the sentence that was meted out on them for the offence of aggravated robbery. On behalf of the 1st appellant, it is contended that the offence of aggravated robbery was charged under section 294 (1) of the Penal Code which prescribes a penalty of a term of imprisonment; starting from 15 years, and going up to life. The 1st appellant's grievance, however, is that the trial court meted out a sentence of death which was provided for in section 294 (2) (as the law then was). On behalf of the 2nd and 3rd appellants, counsel raises the same · argument. 4.12 There are no arguments from the State as they did not file their heads of arguments, although they had promised to do so. 5.0 OUR DECISION 5.1 With regard to the 1st appellant, there is no dispute that he was in possession of the deceased's car; and that he took it across the border into the Democratic Republic of , J18 such as aggravated robbery or murder) the court is bound to return a verdict on the less severe case." 5.3 Now, in this case, the fact that the appellant took the car to the Democratic Republic of Congo, through an undesignated point, and that he removed the number plates from the car amounted to suspicious conduct on his part. Hence, he could not reasonably claim to have been in innocent possession of the car. The question that remains, therefore, is; following the case of Nswana v The Peoplel2 1, can he be said to have merely been a guilty receiver, or retainer? The answer. to that question lies in the following findings: the trial judge found that, between 19:49 hours and 19:50 hours on the 1st July, 2012, the 1st appellant called the deceased's phone, and that this communication was the last activity on the deceased's phone. The judge further found that the call records showed that the 1st appellant made the call when he was in the Kamatipa area of Kitwe. The learned judge then took judicial notice of the fact that this area was in close • • J19 . proximity with the cemetery where the deceased's body was found. 5.4 In the Judge's view, these were the findings that linked the 1st appellant to the commission of the murder and aggravated robbery. We agree with the trial judge in his conclusion because it was, indeed, too much of a coincidence that the 1st appellant had not only been in recent possession of the car that the deceased had been driving, but was also the last person to have communicated· with the. deceased. Surely the only irresistible conclusion that could be drawn from these findings was that the 1st appellant participated in the murder and aggravated robbery, and was not a mere receiver, or retainer, of the motor vehicle that the deceased had been driving. 5.5 As for the 2 nd and 3 rd appellants, they came into possession of the deceased's phone very shortly after the murder and aggravated robbery. Now, the fact that they then went on to dispose of it very quickly is evidence which says that they could not reasonably claim to have come into ,. • • J20 innocent possession of that phone. So, the only question that remains is whether, not having been in innocent possession of the phone, the two appellants could have merely been guilty receivers, or retainers, of the phone. 5.6 The weight of the evidence pointed to their participation in the crime, as we shall demonstrate: First, the trial judge's findings were that: not only were the two appellants in possession of the deceased's phone, but they were also apprehended at the 1st appellant's house. It is those two findings that the trial judge found to have linked both the 2 nd and 3 rd appellants to the commission of the crime. Again, we agree with the learned trial judge in his conclusion but hasten to add that there were also several other odd coincidences which pointed to the participation of the two appellants in the commission of the crime. For instance, the two appellants in their own defence associated themselves with the stolen motor vehicle in the early stages of the chain of events that eventually led to the car being sold in the Democratic Republic of Congo when they told the judge that they were the ones who took • ,. J21 two unknown men, who were in possession of the motor vehicle, to the 1st appellant. Since it is clear that the 1st appellant came to be in possession of that motor vehicle through his participation in the crime, it means that the 2nd and 3rd appellant's story was a lie; it also means that their association with the motor vehicle must obviously extend as far back as the commission of the crime itself. This conclusion is supported by their possession of the deceased's phone, which they disposed of very quickly, and their continued association with the 1st appellant which was demonstrated by the fact that when the police want to apprehend the 1st appellant, they also found the 2nd and 3 rd appellants hiding under the bed. There was further evidence linking, in a material particular, the 2nd and 3 rd appellants to the motor vehicle. This came from the 1st appellant in his evidence on oath when he told the court that the reason why the other two appellants were found at his house was because they had gone over there the previous day to confront him over the sale of the car. That evidence was incriminating the 2nd and 3rd • • J22 appellants, and yet, although they were represented by a different counsel from that of the 1st appellant, they did not put to the 1st appellant any question to challenge that part of the 1st appellant's story. Of course, we now know that even that part of the story was not entirely correct because circumstantial evidence points to the fact that all the three appellants were in this crime together. Hence, the learned trial judge was on firm ground when he came to the conclusion that the 2 nd and 3 rd appellants also participated in the crime. 5.7 That being the case; it goes without saying that the contention by the 1st appellant in his second ground of appeal that the trial judge erred when he concluded that the three appellants had manifested an intention to commit an unlawful act, is without merit. 5.8 Therefore, to the extent that they relate to conviction, the appeals by the three appellants have no merit. 5.9 We now come to the sentence. Before the death penalty was removed from the statute, Section 294 of the Penal Code was in two parts; that is Section 294(1) and Section I • J23 294(2). The first part, which is Section 294(1), set out the circumstances which amounted to aggravated robbery. It provided, in particular, that the violence used in this instance, unlike in the case of a mere robbery, was to be with the aid of an offensive weapon or instrument. Section 294(1) went on to provide the punishment for aggravated robbery as being imprisonment which ranged from a mandatory minimum sentence of 15 years, going on up to life imprisonment. Section 294(2), on the other hand, provided that where the weapon used was a firearm or, if no firearm was used, where the violence resulted in grievous harm being done to any person then instead of imprisonment, as provided in Section 294(1), the punishment would be a mandatory sentence of death. 5.10 Now, the appellants seem to think thatSection 294 created two offences, one under subsection (1) and the other under subsection (2); and that they were to be charged separately. That is not correct because what that section created was only one offence of aggravated robbery: the difference . between subsection (1) and J24 subsection (2) was only with regard to the severity of the violence; meaning that it was a difference which affected punishment, as opposed to creating two offences. 5.11 Therefore, the offence of aggravated robbery always fell to be charged under Section 294(1). Thereafter, the punishment to be meted out depended on the evidence that was proved; if it was proved that the violence was merely with an offensive weapon, it not being a firearm, and without any grievous harm being done to anyone, then the court was at liberty to select a sentence from the range between the mandatory minimum of 15 years and life imprisonment, as provided by subsection (1). Where, however, it was proved that the violence was committed with the use of a firearm or that, although no firearm was used, grievous harm was done to anybody in the course of the robbery, then the court had no choice but to apply the death sentence provided in subsection (2). In the latter case, however, we gave guidance in the case of Kalonga v The People171 , a matter in which a firearm was used, that, when there was an allegation that the robbery was ·t ~ .. • ;, J25 committed with the use of a firearm, it was essential that an accused person was notified as such, even in the particulars of the offence, so that he was aware that he faced a possible death sentence under subsection (2); otherwise the death penalty would not be upheld on appeal, even if the evidence at trial had proved the use of a firearm. This guidance also applied to the case where grievous harm was done to someone, although no firearm was used. But we did not mean that, in order for the accused to be said to have been notified that he faced a possible death penalty, the charge should then read as being contrary to Section 294 (2) because clearly that subsection did not create a separate offence, but only provided for an additional type of punishment. 5.12 Coming back to this case, although no firearm was alleged to have been used during the robbery, it was clear that this ~as a case which was punishable under Section 294 (2) (b) because grievous harm was certainly done to the victim in the course of the robbery, as evidenced by the fact that • ,. • J27 sentencing the appellants to death on the count for aggravated robbery. Consequently, we find no merit on the issue raised by the appellants. 5.14 All in all, the appeal has no merit in its entirety, and we dismiss it. SUPREME COURT JUDGE F. M. Chisanga SUPREME COURT JUDGE