Clement Binto Chola v The People (APPEAL NO. 79,80/2023) [2024] ZMCA 267 (17 October 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 79, 80/2023 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: ·u\JK I Vr- "'"r-._,.,,__ CLEMENT BINTO CHOLA '. • I UCT 20~4 _ j APPELLANT AND THE PEOPLE \ ~J,,lJ"hL .tl.l..ui.:, 1 t\ 1 ,:. RESPONDENT CORAM: MCHENGA, DJP, NGULUBE AND MUZENGA, JJA. On 22nd May, 18th June and 17th October, 2024. For the Appellant Mrs. M. Tatila Mulubwa - L egal Aid Counsel Legal A id B oard. For the Respondent Mr. 0. Sian kanga} Depu ty Chief State Advocate National Prosecutions Authority JUDGMENT NGULUBE, JA d eliver ed the J udgment of the Court. Cases ref erred to: 1. 2. Chabala vs The People (1976) Z. R. 14 Katebe vs The People (1975) Z. R. 15 3 . Soondo vs The People (198 1) ZR 302 (SC) 4. Webster Kay Lumbwe vs The People (1986) ZR 93 (S. C) 5 . Mulenga and another vs The People (2008) ZR 1 6. John Mkandawire and others vs The People (1973) ZR 100 7. Ngati & Others vs The People SCZ Judgment No. 14 of 200 8. Muvuma Kambanja Situna vs The People (1982) Z. R. 115 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 The appellant was charged on an information containing one count of the offence of murder contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. He appeared before Mr. Justice I. Kamwendo. 1.2 The particulars of the offence are that on 5 February, 2021 at Kabwe, the appellant and Emmanuel Mwanza (the 2 nd accused in the Court below) murdered Cecilia Bweupe (hereinafter called the deceased). 1.3 Both the appellant and his Co-accused denied the charge and the matter proceeded to trial. At the end of the trial, the appellant was convicted and condemned to suffer capital punishment while the 2 nd accused person was acquitted. The appellant appealed against conviction and sentence. -J2- 2.0 CASE BEFORE THE TRIAL COURT 2.1 The evidence before the trial judge was that PWl (the key witness) and his family shared an unfinished house with Cecilia Bweupe and other families, where PWl was a caretaker. That on the material night around 22:00 hours, Cecilia called PWl 's wife from her room and informed her that the appellant had given her problems earlier that night. She asked someone to escort her to her room in fear of what the appellant would do to her. 2.2 That a little while later, PWl, his wife and Cecilia heard a stone hit her window. She suspected that the appellant was the one who hit the window and she called the appellant's wife on phone but it was the appellant who answered the call. She asked the appellant if she could speak to his wife. Cecilia invited the appellant's wife to go to her house and see what the appellant had done . 2 .3 Later on the material night, PWl heard the appellant's co-accused knock at Cecilia's door despite her attempting to turn him away. He insisted that she opens the door because he had something important to tell her. -J3- 2.4 When Cecilia opened the door, PWl heard her shout for help. PWl rushed to the scene which was Cecilia's room and he found the 2nd accused standing by her door while the appellant was dragging her. That there was blood coming from Cecilia's head and the appellant threatened PWl with a brick and told him not to intervene. 2.5 After retreating to his home aµd changing his clothes, PWl found the appellant sitting on Cecilia's chest while hitting her with a pan brick on the head. PW 1 called for help at a nearby bar and when he returned with PW2 and other onlookers, they found Cecilia's lifeless body, half-dressed while the appellant and the 2 nd accused had run away. Cecilia's head was smashed and PW 1 and PW2 then reported the matter to the police. 2.6 PW4 and PW6 went to the scene and observed that Cecilia's body had multiple bruises on the face and there were broken pan bricks at the scene. That there was a hole in the ground where Cecilia's head hit the ground. PW6 warned and cautioned the appellant who was arrested for the subject offence. -J4- 2.7 A postmortem examination that was conducted on 18 February, 2021 attributed Cecilia's death to multiple blunt force injuries of the h ead and face by a blunt hard object and skull fractures. 2.8 In his defence, the appellant stated that he had a misunderstanding with his wife who accused him of having an extra marital affair. So he left his house and went to Lusaka on 25 January, 2021, which was before Cecilia was murdered. That he went to his cousin's house who also had other people living with him. That he stayed in Lusaka until he was apprehended on 10 February, 2021, on allegations of having committed the subject offence. 3.0 FINDINGS BY THE LOWER COURT 3. 1 After considering the evidence, the lower Court found that Cecilia's death was caused by the appellant. The Court further found that even though the appellant was linked to the commission of the offence by PWl who was a single identifying witness, the danger of honest mistake and had been ruled out. That this was because the appellant was known to PWl because he was Cecilia's boyfriend and frequented her house. That PWl also stated that he knew the appellant as they also went to the same church. Further, the Court -JS- also found that even though the altercation happened at night, there was moonlight and PWl and Cecilia's house was lit. This was corroborated by PW6 who testified that he visited the crime scene on the material night and there was light at Cecilia's house. 4.0 THE APPEAL 4.1 The appellant was dissatisfied with the decision of the lower court and appealed to his court, advancing one ground of appeal couched as follows- 1. The court be low erred when it did not consider the evidence given by the appellant in his Defence but only believed the evidence from the prosecution witnesses. 5.0 APPELLANT'S HEADS OF ARGUMENTS 5.1 In arguing the sole ground of appeal, it was submitted that in his Defence, the appellant informed the court that he was not in Chibombo, but was in Lusaka when the offence was committed. It was contended that he even informed the police officers who apprehended him that he was in Lusaka when the offence was committed. It was contended that the evidence of PWl was not corroborated and yet it is the only evidence that placed the appellant at the scene of crime. -J6- 5 .2 It was contended that PWl was a single identifying witness to an offence which occurred at night. Accordingly to Counsel, the evidence of PWl needed to be corroborated to rule out the possibility of an honest mistake. The case of Chabala vs The People1 was referred to, where the Supreme Court held that there is no onus on an accused to prove his innocence. 5.3 Accordingly to Counsel, the explanation that was given by the appellant was reasonable and there was no duty on the appellant to prove his innocence. 5.4 The court's attention was drawn to the case of Katebe vs The People2 where the court held that it is a dereliction of duty for an investigating officer to fail to make a proper investigation of an alleged alibi. The case of Soondo vs The People3 was also cited in this regard. 5. 5 We were urged to allow the appeal and set aside the conviction and sentence. 6.0 RESPONDENT'S ARGUMENTS 6.1 The respondent filed heads of argument on 19 June, 2024. It was submitted that the State was in support of the conviction in this matter. The State was of the view that the court analysed the -J7- evidence before it and properly arrived at the appellant's conviction. The case of Webster Kay Lumbwe vs The People4 was referred to, where the Supreme Court guided that- "An appeal court will not interfere with the trial court's findings of fact, on the issue of credibility unless it is clearly shown that the.finding was erroneous." 6.2 It was contended that the lower court made findings of fact which were arrived at judiciously after considering all the evidence before it. It was argued that the appellant had the opportunity of facing the single identifying witness and failed to discredit him. It was submitted that the appellant cross-examined PWl intensively, but the witness remained unshaken and addressed all the questions that were put to him squarely. 6.3 It was submitted that the evidence of PWl that the appellant used a brick to hit Cecilia on the head was in agreement with the finding of the doctor as per the postmortem report. 6.4 It was submitted that the evidence that PWl knew the appellant before the attack as well as the evidence of the appellant beating up Cecilia with a brick were unchallenged. It was contended that the trial court was entitled to rely on the evidence in that regard. -J8- 6.5 The case of Mulenga and another vs The People5 was referred to, where the Supreme Court guided that- "During trial, parties have an opportunity to challenge evidence by cross examining witnesses. Cross examination must be done on every material particular of the case when prosecution witnesses are narrating actual occurrence. Accused persons must challenge these facts which are disputed." 6.6 On the evidence of PWl being a single identifying witness, it was submitted that the lower court dealt with the evidence of a single identifying witness in a proper way to ensure that the danger of mistaken identity is eliminated. The case of John Mkandawire and others vs The People6 was referred to where it was held that- "The evidence of a sing le identification witness must be treated with greatest caution because of the danger of honest mistake being made. Usually, this possibility cannot be ruled out unless there is some connecting link between the accused person and the offence which would render a mistaken identity too much of a coincidence." 6.7 It was submitted that the appellant was well known to PWl who used to see him when he would visit Cecilia. The witness also -J9- knew the appellant from church for about one year. It was submitted that on the material night there was moonlight and there was lighting in the house where the appellant attacked and dragged Cecilia. As such, PWl has a good opportunity to see the appellant. 7.0 Counsel submitted that PWl was an independent witness and that his evidence did not fall in the category of a witness who required corroboration. It was submitted that taking all the evidence into consideration, this appeal has no merit and we were urged to dismiss it and uphold the conviction and commuted-sentence . 8.0 CONSIDERATION OF THE MATTER AND DECISION 8.1 We have considered the evidence on record and the judgment appealed against, the evidence which linked the appellant to the commission of the offence came from PW 1. 8 .2 His evidence was that he saw the appellant drag Cecilia who· had blood on her head. The witness also stated that he saw the appellant sitting on her chest while hitting her with a pan brick. When PW 1 returned with PW2, they found Cecilia dead and her head was crushed. The postmortem report showed that Cecilia died from the injuries that she sustained. -JlO- 8 .3 PWl was the only witness who saw the appellant committing the subject offence. Therefore, the issue would be whether the Court can convict on the evidence of a single identifying witness. 8. 4 It is proper for a Court to convict on the evidence of a single identifying witness as long as the danger of an honest but mistaken identity is eliminated. This is in accordance with the holding in the case of Ngati & others vs The People7 and Muvuma Kambanja Situna vs The People8 • The lower Court cautioned itself on the danger of an honest but mistaken identity and found that it had been excluded. From the evidence adduced, we concur with the lower Court that the danger of an honest but mistaken identity had been eliminated because even though the incident occurred at night, there was lighting from PWl 's torch (as stated by PW2) and the deceased's house as stated by PW6 who visited the crime scene on the material night. 8.5 Further PWl stated that the appellant was a frequent visitor to Cecilia's house because he was her boyfriend. PW 1 also stated that he knew the appellant from church. Even though the appellant denied knowing PWl in his defence, he did not challenge this testimony during cross examination of PW 1. -Jll- 8.6 Additionally, the danger of false accusation was eliminated in this case because the appellant could not tell the Court why PWl would tell a lie against him. 8. 7 In view of the fore going, we are of the considered view that the appeal has no merit. 9.0 CONCLUSION 9.1 We uphold the conviction and sentence and we dismiss the appeal for lack of merit. P. C. M. NGULUBE COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE -J12-