Charles Mekanin Phiri v The People (APPEAL No. 132/2022) [2024] ZMCA 251 (22 August 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL No. 132/2022 HOLDEN AT LUSAKA/NDOLA (CRIMINAL JURISDICTION) BETWEEN: CHARLES MEKANI PHIRI AND THE PEOPLE 2 2 AUG 2024 APPELLANT RESPONDENT Coram: Mchenga DJP, Ngulube and Muzenga JJA On 25 th April 2023 and 22 nd August 2024 For the Appellant : K. Chitupila, Acting Principal Legal For the Respondent: S. Simwaka, Senior State Advocate, Aid Counsel, Legal Aid Board National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court . Cases referred to: 1. Simon Malambo Choka v . The People [1978] Z. R . 243 2. Katebe v . The People [1975] Z . R . 13 3. Peter Yotamu v. The People [ 1977] Z . R . 184 4. Chabala v . The People [1976 ] Z . R . 4 s . Dorothy Mutale and Another v. The People [1995-1997] Z. R . 102 6. David Zulu v . The People [ 1 977] Z. R . 151 7. Benson Phiri and Another v . The People , SCZ Judgmen t No . 245 OF 2002 s . Nickson Kakumba v . The People SCZ Appeal No . 479 of J2 9. Ezron Munkombwe and Others v. The People , CAZ Appeal No . 7 , 8 , 9 of 2017 10 . Andrew Mwenya v . The People , Appeal No . 640 of 2023 11. Machipisha Kombe v . The People [2009] Z. R . 282 12. Joseph Banda and Ashanti Tonga v . The People , SCZ Appeal No . 41 and 42 of 2021 13. Yokoniya Mwale v. The People , SCZ Appeal No. 285/2014 14 . Nzala v . The People [1976] Z . R. 221 1s . Charles Lukolongo and Others v . The People [1986] Z . R . 115 Legislation referred to: 1. The Penal Code , Chapter 87 of the Laws of Zambia 1. o INTRODUCTION 1.1 The appellant and 3 others , appeared before the High Court (Maka , J . ), charged with the offence of murder contrary to Section 200 of the Penal Code. 1.2 They denied the charge and the matter proceeded to trial . At the end of the trial , the appellant was convicted , while all his co-accused where all acquitted . 1. 3 He was condemned to suffer capital punishment and he has now appealed against the conviction . 2. o CASE BEFORE THE TRIAL COURT J3 2.1 On 17 th July 2019 , in the evening , Benson Muyabe , the Headmaster at Monde Primary School , in Kalamo , was shot dead at h i s house . 2 . 2 He had a frosty relationship with his deputy headmaster (who was one of the appellant ' s co - accused persons in the court below) . There was a rumour that Benson Muyabe was having an affair with his deputy headmaster ' s wife . 2. 3 In addition , Benson Muyabe was unpopular with some members of the community in the area where his school was located because he was a reputed wizard . 2.4 On the eveni ng he was shot , Benson Muyabe had just returned from a dam , in the vicinity of his house . He was in the company of his wi f e and 3 daughters . They had gone to the dam to water some bricks he had moulded . 2.s According to his wife and daughter (Cynthia Muyabe) , as they drove to the dam , that afternoon , they saw the appellant on a road near their house . 2 . 6 On their return from the dam , Benson Muyabe remained in his car outside his house , while his wife and daughters entered the house . Not long after they had entered the house , a gunshot was heard . J4 2. 7 Benson Muyabe ' s wife and daughters came out of the house . All his wife saw , was her husband bleeding from a gunshot wound . However , Cynthia Muyabe said on corning out of the house , she saw the appellant running away . Benson Muyabe ' s other daughters did not see anyone . 2.s The pol i ce were informed of the shooting and investigations were instituted . 2.9 The investigations led to the arrest of the appellant , Benson Muyabe ' s deputy headmaster , Benson Muyabe ' s nephew and a person from whose house a homemade firearm was recovered . Al though the recovered firearm could not be linked to the shooting of Benson Muyabe , it was able to load ammunition of the type Benson Muyabe was killed with . 2 . 10 During the trial , Stanley Chiwila , gave evidence of the acrimony between Benson Muyabe and his deputy headmaster . He recalled an incident when he was travelling from Nazilongo with Benson Muyabe . They met the appellant who told them that he was going to provide proof that his deputy headmaster was planning to kill him . JS 2.11 The appellant called the deputy headmaster and placed the phone on loudspeaker . He then informed the deputy headmaster that he had seen Benson Muyabe with his wife at a lodge . The appellant tried to get the deputy headmaster to instruct him to kill Benson Muyabe , but it did not work . 2.12 When placed on his defence , the appellant admitted being given a lift from Nazilongo . However, he denied having ever made the ca l l Stanley Chiwila referred to . He said it was Benson Muyabe who gave him K50 to call his deputy headmaster and to record the call . 2 .13 The appellant also denied shooting or being in the vicinity when Benson Muyabe was shot . He said on the evening of the shooting , he was at his girlfriend ' s house , away from the area . He only heard of the shooting on his return , on 18 t h June 2022. 2.14 The deputy headmaster gave evidence in his defence . He testified that in 2018 , he heard rumours of his wife having an affair with another man. The issue was tabled before the headman . After sometime , the appellant offered to kill the person who was going out with his wife . J6 2.1s The appellant subsequently informed him that it was Benson Muyabe who was going out wi th his wife . The appellant persistently demanded money so that he could "do the job for himn , but the deputy headmaster declined . 2.16 The deputy headmaster also recalled an incident when the appellant called him and informed him that he had seen Benson Muyabe with his wife at a lodge in Kalomo . He even asked if he should find them and kill them . The deputy headmaster said he subsequently differed with the appellant because he resisted his offers to kill Benson Muyabe . 2.17 In her judgment , the trial Judge considered the a l ibi raised by the appellant , that he was away from 16th to 18 th of June 2019 . She accepted Cynthia Muyabe ' s evidence that she identified the appellant because there was sufficient light when she saw him running into the bush . She considered the possibility of his being falsely implicated and ruled it out . 2.10 She found that the circumstantial evidence against the appellant was that he was seen running away from the scene , soon after a gunshot was heard and Benson Muyabe J7 was found dead . She also found that he was incriminated by evidence of his pitting the Benson Muyabe and his deputy headmaster for gain. The appellant therefore had the motive and opportunity to commit the offence . 2 . 19 Finally , the trial Judge found that even if the appellant was not seen carrying a gun at the time he was seen running away , he had a common purpose with those who shot Benson Muyabe , in line with Section 22 of the Penal Code. 3.0 GROUNDS OF APPEAL AND ARGUMENTS IN SUPPORT 3.1 Three grounds have been advanced in support of the appeal. The issues they raise are : ( i) the trial Judge erred when she convicted the appellant on the uncorroborated evidence of Cynthia Muyabe , a witness who had a possible interest of her own to serve. (ii) the trial Judge erred when she rejected the appellant ' s alibi , as it was reasonably possible ; and (iii) the inference that the appellant murdered Benson Muyabe , is not the only inference that JS could have been drawn on the circumstantial evidence that was before the trial Judge . 3 . 2 On the testimony of Cynthia Muyabe , the case of Simon Malarnbo Choka v . The People1 , was referred to and it was submitted that the appellant ' s conviction cannot stand because it is anchored on the uncorroborated evidence of a daughter , wh o is a witness with a possible interest of her own to serve . 3.3 Coming to the appellant ' s alibi , the cases of Katebe v . The People2 and Peter Yotarnu v . The People 3 , were referred to and it was submitted that there was de r eliction of duty when the police failed to investigate it . On the basis of the case of Chabala v . The People 4 , it was submitted that since the appel lant ' s alibi could reasonably have been true , the trial Judge should have accepted it . 3.4 Further , it was submitted that in the face of the a l ibi , it is possible that the appellant could not have been the person seen by Cynthia Muyabe . Going by the decision in the case of Dorothy Mutale and Another v. The People5 , it was submitted that there being two possibilities , that is , he was present or that he was J9 not present , the trial Judge should have drawn an inference more favourable to the appellant ; which is that he was not the person who discharged the firearm , especial l y that he had no motive to kill Benson Muyabe. 3 . 5 It was a ls o submitted that in any case , Cynthia Muyabe ' s testimony could not have been a basis for a conviction because her evidence was that the appellant was not carrying anything at the time she saw him running away. 3.6 Finally , it was submitted that in the face of the possibilities that the appellant may have been or may not have been present , the test set in David Zulu v. The People 6 , for a conviction being based on circumstantial evidence , was not met . This is because with these two possibilities, an inference that the appellant murdered Benson Muyabe , is not the only inference that could have been drawn . 4.0 ARGUMENTS IN RESPONSE JlO 4 .1 In response to the submission on the re l iabi l ity of the testimony of Cynthia Muyabe , reference was made to the cases of Benson Phiri and Another v. The People7 and Nickson Kakumba v. The People 8 , and it was submitted that it was competent for the trial Judge to convict the appellant on the evidence of a single identifying witness . 4.2 In addition , the case of Ezron Munkombwe and Others v. The People 9 , was referred to and it was submitted that Cynthia Muyabe ' s identification of the appel l ant was enhanced by the fact that moments before the shooting , he was seen by that witness and her mother. 4.3 Reference was also made to the case of Andrew Mwenya v. The People10 and it was submitted that the mere fact that Cynthia Muyabe was a daughter of the victim of the murder , did not render her a suspect witness . 4.4 In was also submitted that in any case , the testimony of Cynthia Muyabe was corroborated . The case Machipisha Kombe v. The People11 , was referred t o and it was submitted that her testimony was corroborated by an odd coincidence ; it was an odd coincidence that the appellant , who had been involved in planning to Jll kill Benson Muyabe , was seen leaving the scene of the shooting soon after a gunshot was heard. 4.5 In response to the argument on the competence of the conviction on the circumstantial evidence that was before the trial Judge , the case of Joseph Banda and Ashanti Tonga v . The People12 , was referred to and it was submitted that even in the absence of direct evidence , it was competent for the trial Judge to convict the appellant , on the circumstantial evidence that was before her . 5.o CONSIDERATION OF APPEAL AND DECISION OF THE COURT 5.1 We will first deal with the standing of the testimony of Cynthia Muyabe ; issue was raised with her opportunity to observe the appellant and the possibi l ity that she was biased . 5.2 The accepted evidence was that earlier that afternoon , the appellant was seen by Cynthia Muyabe and her mother , near their house , as they were going to where Benson Muyabe had moulded bricks . later that evening , Cynthia Muyabe , saw the appellant fleeing after she heard a gunshot. She gave a detailed description of what he was wearing and said although it was dark , J12 she was able to identify him because of the electric lighting . 5. 3 On this evidence , we find no basis on which we can fault the trial Judge ' s finding that Cynthia Muyabe had the opportunity to identify the appellant . This identification evidence is given credence by evidence that , earlier that day , the appellant was seen near the house where Benson Muyabe was later shot and killed . 5.4 Further , in the case of Yokoniya Mwale v The People13 , it was held that the mere fact that a witness is related to a victim of the offence , does not render such a witness suspect . It is the particular circumstances of a case that may warrant the classification of such a witness as a suspect witness . 5.5 In this case , the trial Judge noted that Cynthia Muyabe was Benson Muyabe 's daughter . After considering the circumstances of the case she ruled out the possibility of bias . She particularly noted that had this witness intended to falsely implicate the appellant , she would have claimed that he was J13 carrying something at the time she saw him fleeing , yet she did not . 5 . 6 It is our view that the trial Judge , was , on the evidence before her , entitled to rule out bias , and the possibility that Cynthia Muyabe had falsely implicated the appellant . 5.7 Coming to the question of the appellant ' s alibi being reasonably possible , the arresting officer admitted being informed by the appellant that he was at his girlfriend ' s place at the time of the shooting . He however , denied the claim that the appellant also gave him his girlfriend ' s phone number . 5.a In the case of Nzala v. The People1 4 , it was held that where an accused person , on apprehension or on arrest , puts forward an alibi and gives the police detailed information as to the witnesses who could support that alibi , it is the duty of the police to investigate it . The failure to investigate does amount to dereliction of duty . 5. 9 However , in the case of Charles Lukolongo and Others v. The People15 , i t was held that where there is dereliction of duty , there is a presumption that had J14 the evidence been produced , it would have been favourable to the accused , but that the presumption can be displaced by strong evidence . s . 1 0 In this case , there was strong identification evidence from Cynthia Muyabe and her mother , placing the appellant at the school at the time he claimed to have been out of town . It is our view that had the trial Judge considered the issue , having found the evidence of these two witnesses credible , she would have to the conclusion that the presumption that the appellant was with his girlfriend , was displaced by that evidence . s.11 It is therefore our view , that the appellant ' s alibi could not reasonably have been true , to lead to a presumption that he was probably out of town at the time of the shooting . s . 1 2 Finally , we will deal with the question whether an inference that the appellant was guilty of murdering Benson Muyabe , is the only inference that could have been drawn on the evidence that was before the trial Judge . JlS s.13 The circumstantial evidence in this case is that the appellant was seen running away from the scene , soon after Benson Muyabe was shot . The evidence does not point at him carrying a gun or indeed carrying anything at the time . s.14 The trial Judge found that even if he was not seen carrying anything at the time he was running away, the appellant must have been in the company of the person(s) who shot Benson Muyabe . This being the case , she found that he had the opportunity to commit the offence. s. 1s In addition , on account of evidence that he had previously offered to kill Benson Muyabe for the reason that he was having an affair with the deputy headmaster ' s wife , the trial Judge found that the appellant had the motive to commit the offence . This evidence was given by the deputy headmaster who was the appellant ' s co - accused in the court below , and that evidence was corroborated by Stanley Chiwila , an independent witness . s.16 On this evidence , we are satisfied that the trial Judge was entitled to come to the conclusion that the J16 appellant had the opportunity and motive to commit the of f ence . s . 11 In the absence of an explanation , it would be too odd a coincidence , that the appellant was present at a place where Benson Muyabe was shot and killed , and had nothing to do with the killing , when he had previously offered to kill Benson Muyabe for gain . s . 1s The fact that the appellant was not carrying anything when he was seen fleeing from the scene , is not helpful to his cause . While it may lead to the conclusion tha t he did not pull the trigger , he is still culpable by virtue of Sections 21 and 22 of the Penal Code. s . 19 These two provisions allow for the charging of persons who are parties to the commission of an offence with the actual commission of the offence , if they had a common purpose with the person who committed the offence . s . 20 On the evidence before her , it is our view that the tri al Judge was entitled to come to the conclusion that the appellant was present at the scene where J17 Benson Muyabe was murdered , because he had a common purpose wi t h the person who shot him. s . 21 In the circumstances , we are satisfied that the trial J u dge correctly came to the conclusion that the only inference that could be drawn on the evidence before her , was that the appel l ant was gu i lty of murdering Benson Muyabe . 6 .0 VERDICT 6 . 1 Having dismissed all the arguments against the conviction , we find no merits in this appeal . We dismiss the appeal and uph old the conviction , and sentence imposed on the appellant by the trial Judge . DEPUTY JUDGE P~ ~ ~ ~ --- P. C. M. Ngulube COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE