Clifford Nsaya and Anor v the People (APPEAL NO. 59,60/2024; APPEAL NO. 59,60/2024) [2025] ZMCA 97 (17 June 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 59, 60/2024 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: CLIFFORD NSAYA BRIAN MOONGA AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM: MCHENGA, DJP, NGULUBE AND CHEMBE, JJA. On 2()th May and 17th June, 2025. For the Appellant Mrs. M. Mulanda Banda) Legal Aid Counsel) Legal Aid Board For the Respondent : Mr. D. Mbao) Senior State Advocate) National Prosecutions Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. Muvuma Kambanja Situna vs The People (1982) ZR 115 2. 3. 4 . Isaac Mwasumbe vs The People (1975) ZR 354 R vs Turnbull and others /1976} 3 All ER 549 Sipalo Chibozu and Chibozu vs The People (1980) ZR 28 5. 6. 7. 1Vlwansa Mushala vs The People (1978) ZR 58 Chimbo and others vs The People (1982) ZR 20 Ezious Munkombwe and others vs The People CAZ Appeal No. 7, 8, 9 of 2017 8. Saidi Banda vs The People Selected judgment Number 30 of Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 The appellants were 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. 1.2 The particulars of the offence were that the appellants on 6 May, 2020 at Monze in the Southern Province of the Republic of Zambia, jointly and whilst acting together, murdered Deedwell Hachoongo. 2.0 CASE AGAINST THE APPELLANTS IN THE LOWER COURT 2.1 The prosecution called six witnesses in support of their case. The evidence of PWl, Judith Hachoongo was that on 6 May, 2020, she went to visit her father, Deedwell at his homestead, because he had -J2- lost three cows through stock theft. She spent a night in the sitting room with her mother and as they slept, her baby started crying. She woke up to breast feed the child and as she did so, someone started pushing the door. After a short while, it swung open and a man entered the sitting room. He held a phone which he used to light up the room and also had a firearm in his other hand. The man inquired about the whereabouts of her father, Deedwell. Her mother responded by stating that she did not know where her husband was. As the man tried to switch off the phone, PWl recognized him as the first appellant whom she had known for many years as they went to the same school. She stated that she observed him for sometime as he tried to switch off his phone. 2.2 PWl stated that the first appellant left the house and she followed him. As she got out of the house , she found Brian Moonga, the second a ppellant whom she also recognized as they were in the same class at school. He told PWl and her mother to go back into the house after h e insulted them. 2.3 She saw a third man, who she could not r ecognize. Soon after she entered the house . PWl h eard a gunshot and soon thereafter, h er stepmother, Rosemary started shouting for h elp, calling PWl and h er mother, stating that PW 1 's father h ad been shot. -J3- 2.4 A few minutes later, her brother Frozen Hachoongo called PWl and her mother and told them to come out of the house as their father had been killed. They went to her father's house and found him dead with a bullet hole in the chest. 2.5 PW2, Rosemary Hachoongo was the second witness. She was the deceased's second wife . Her testimony was that while she was asleep with her husband on the night of 6 May, 2020, someone entered their house and called Deedwell three times, telling him to wake up. PW2 woke up and moved to the edge of the bed and before she could see who was calling her husband, he was shot dead and he fell from the bed. She crawled to the veranda and then went to her co-wife's house to tell her and PWl what had happened. When they did not respond, she went to Frozen Hachoongo's house and informed him that his father had been shot dead. 2. 6 PW3, Daniel Banda was the forensic ballistic expert at Police Headquarters, Lusaka. He stated that on 18 February, 2022, he conducted a forensic ballistic examination of a homemade firearm which had no ballistic data. His examination revealed that the firearm had been discharged previously. He was of the view that the firearm was a non-functioning home-made firearm which can discharge by trick after undergoing repairs. -J4- 2 . 7 PW4, Racheal Hachoongo was the deceased's first wife. She stated that on the night of 6 May, 2020, a man she could not recognize entered the sitting room of her house and asked for the whereabouts of her husband. When she told him that she did not know where he was, he left the house and PW4 and her daughter, PW 1 followed him. When she got out of the house she saw the second appellant who she called by name. He touched her on the chest and pushed her back into the house. There were two other men who she could not recognize. 2.8 The men closed the door and left. Soon thereafter, PW4 heard a gunshot and she also heard Rosemary, her co-wife calling her. She did not go out of her house because she was filled with fear. 2.9 PW5, Lubinda Pumulo was the arresting officer. He attended the postmortem examination that was conducted on the body of the deceased. He stated that three pellets were removed from the deceased's chest and abdomen. PW5 stated that he found out that A2 borrowed a firearm from Mathias to protect himself against stock theft. He stated that during the time when the deceased was shot dead, the firearm was with Deadwell's son, Frozen Hachoongo. 2.10 PW6, Mathias Ngandu's testimony was that sometime in March, 2020, the second appellant went to see him and requested to -JS- borrow his firearm to protect himself from cattle rustlers. He returned the firearm to Mathias in May, 2020. 2.11 In his Defence, the first appellant denied having been involved in the murder of the deceased. He was apprehended on 23 March, 2022. 2.12 In his Defence, the second appellant stated that he borrowed a firearm from PW6, Mathias Ngandu and that on 28 April 2020, Frozen Hachoongo picked up the firearm from the second appellant. He only returned it on 15 May, 2020. The second appellant then decided to take the firearm back to the owner (PW6) on 19 May, 2020. The appellant denied any knowledge about the murder of the deceased. He was only apprehended in March 2022. 2.13 DW3, Mainess Twaambo was the second appellant's wife. She stated that she was at home when Frozen Hachoongo went to borrow a firearm from her husband. When Frozen returned the firearm in May, 2020 she was at home and she witnessed it. 3.0 FINDINGS OF FACT BY THE LOWER COURT 3. 1 The lower court found that Deed well Hachoongo was shot dead on the night of 6 May 2020 while sleeping at his home. -J6- 3.2 That PWl identified the first appellant her former school mate as the intruder who entered their home and asked about the whereabouts of her father. 3.3 PW4 identified A2 as having been among the men who they found outside the house when they followed the first appellant as he left their house on the fateful evening. 3.4 The court accepted the evidence of PWl and PW4 when they stated that they identified the first and second appellants on the fateful night. The court found that PWl and PW4 knew the appellants well and could not have had a case of mistaken identity and ruled out the danger of false implication. 3.5 The court found that the appellants formed a common purpose to murder the deceased and rejected the alibis that were raised by the appellants as it was of the view that they were afterthoughts. 4.0 LOWER COURT'S DECISION 4.1 The lower court concluded that the appellants followed the deceased to his houses with a firearm in the middle of the night. The court was satisfied that the circumstantial evidence was so cogent that it made the only reasonable inference, that the -J7- appellants murdered the deceased and th ey were con victed accordingly. 5.0 THE APPEAL 5 .1 The appellants were dissatisfied with the convictions and appealed to this court, advancing one gr ound of appeal couched as follows- 1. The learned trial court erred in law and infact when the court found that the circumstantial evidence had taken the case out of the realm of conjecture and that it had attained a degree of cogency which permitted only an inference of guilt. 6.0 APPELLANTS' ARGUMENTS 6.1 On behalf of the appellants', counsel filed written heads of arguments on 15 May, 2025. 6.2 In arguing the sole ground of appeal, it was contended that it is impossible to see what is behind the source of light that is pointed directly in one's direction in a dark room at night. It was argued, regarding the recognition of the first appellant by PWl that the opportunity for reliable observation was poor and that the possibility of an honest m istake was not ruled out. -J8- 6.3 The case of Muvuma Kambanja Situna vs The Peoplel was referred to in this regard. Further, the case of Isaac Mwasumbe vs The People2 was referred to where the Supreme Court held that "Even in recognition cases i.e where an identifying w itness recognizes an assai lant as someone he knew before, a trial Judge should warn himself of the need to exclude the possibility of an honest mistake." 6.4 Counsel contended that although PWl stated that she knew PWl well, the opportunity to reliably observe him was difficult and that she did not in her testimony, describe the features that helped her observe the assailant who she came to recognize as the first appellant. The English case of R vs Turnbull and others3 was also referred to in this regard. 6.5 It was contended that the possibility of an honest mistake was not ruled out and it was argued that the fact that the police did not conduct identification parades for PWl and PW4 made the case for the recognition of the appellants even more unreliable. 6.6 Turning to the identification of the second appellant by PW4, it was argued that PWl and PW4 gave contradicting accounts of what they observed regarding who entered the house on the fateful night. It was argued that the court was required to make a determination -J9- regarding the alleged inconsistent statements that PWl and PW4 gave on the occurrences that material night. 6.7 It was contended that the trial court should have found PW4 as an untruthful witness whose credibility was in question. Citing the case of Sipalo Chibozu and Chibozu vs The People4, it was su bmitted that the trial court failed to make a determination on the alleged inconsistent statement that was tendered into evidence and th at this was a misdirection on the part of the trial court. 6.8 It was contended that the circumstantial evidence did not take the case out of the realm of conjecture to permit only an inference of guilt. We were urged to allow the appeal, quash the conviction and sentence and set the appellant at liberty. 7.0 RESPONDENT'S HEADS OF ARGUMENTS 7 .1 Th e respondent filed head s of argument on 20 May, 2025. It was submitted that the respondents were in support of the conviction and sentence. Responding to the appellants' heads of argument, it was submitted that PWl had sufficient time to observe the assailant who entered the house and that as the man struggled to switch off the torch on his phone, he directed the torch to his face and that she then identified him as the first appellant. It was -JlO- further submitted that when PWl and PW4 followed the first appellant as he left their house, they found two men outside and PWl then recognized the second appellant, but she could not recognize the other man who was short in stature. It was further submitted that PW4 also identified the second appellant who told PWl and PW4 to go back into the house and that he pushed PW4 back into the house and even insulted PWl and PW4 in the process. 7.2 Relying on the case of Muvuma Kambanja Situna vs The People (supra), it was submitted that PWl and PW4 had the opportunity to positively and reliably recognize the two appellants and that as such, the possibility of an honest mistake was ruled out. 7 .3 Regarding the fact that the Police did not conduct an identification parade, it was contended that PWl and the first appellant knew each other well from primary school, while the second appellant was even PWl's classmate. 7 .4 It was argued that there was no need of conducting identification parades for the identification of people who PW 1 and PW 4 knew well and that there was no need of the witnesses giving the physical features of the appellants to the police when they gave their statements. -J11- 7.5 Regarding the assertion that PWl and PW4 gave inconsistent statements, it was submitted that there was no discrepancy in the testimonies of the witnesses in court. It was contended that the trial court was on firm ground when it found that the circumstantial evidence was so cogent to permit only an inference of guilt on the part of the appellants. We were urged to dismiss the sole ground of appeal and to dismiss the appeal in its entirety for lack of merit. 8.0 CONSIDERATION OF THE APPEAL AND DECISION OF THE COURT 8 . 1 We have considered the evidence on record, the Judgment appealed against and the parties' arguments . The pertinent question for consideration is whether the lower court was on firm ground when it convicted the appellants on the circumstantial evidence as the lower court was of the view that the circumstantial evidence was so cogent to permit only an inference of guilt. 8.2 The evidence which linked the appellants to the commission of the offence was proffered by PWl and PW4, who were the daughter and the first wife of Deedwell Hachoonga, who was shot dead on the material night. 8.3 The evidence of PWl was that as she was with her mother in the sitting room on the fateful night, the door was forced open by an -J12- intruder. The man then entered and asked for the whereabouts of her father, Deedwell. According to PWl, the man used the torch light of his phone to light up the sitting room and that as he tried to switch off the torch light, he fumbled with the phone which ended up focusing on his face. In the process, PWl saw his face and recognized the first appellant who was her senior at school. She testified that he had a phone in one hand and a firearm in the other hand. PWl testified that when she recognized the appellant, she even called out his name and asked him what he was looking for at that time of the night. 8.4 As the first appellant left the house, PWl and her mother PW4 followed him and when they got out and stood on the verandah, PW 1 saw two men outside and she recognized one of them as Brian Moonga the second appellant. When Brian saw PW 1 and her mother, he threatened them and ordered them to go back into the house. He even uttered insults as he pushed them back into the house. 8.5 According to PWl, Brian Moonga was 2 metres away from her when she recognized him. PWl and her mother got back into the house and closed the door. Soon thereafter, they heard a gunshot. She later heard her step mother Rosemary Hachoongo who called PWl -J13- and her mother, telling them that PWl 's father, Deedwell had been shot. She eventually rushed to her father's house where she confirmed that he was shot dead. 8.6 PWl testified that the first appellant was her sen10r 1n pnmary school, so she knew him well. She also testified that Brian Moonga was her classmate at school, so she also knew him well. The evidence of PW4, was essentially the same as that of PWl regarding how the intruder entered their sitting room on the night of 6 May, 2022. According to PW4, the intruder tried to open the door three times, until he managed to force the door open. The intruder carried a phone which he used to light the room. He held the phone with his left hand while he had a firearm in his right hand. 8. 7 PW4 stated that she did not recognize the intruder, but when he left the house after inquiring about the whereabouts of her husband PW 1 followed him. When they got out of the house, they saw two other men and she recognized one of them as Boko, who is the second appellant herein. When he saw PW4, the second appellant touched PW 4 on the chest and pushed her back into the house, while insulting her. Soon after PW4 got back into the house, she heard a gunshot. She later heard her co-wife, Rosemary shouting and found out that it was her husband Deedwell who was shot -J14- dead. PW4 stated that she had known the second appellant from the time of his birth. 8.8 The learned defence counsel attacked the lower court for accepting the evidence of recognition proffered by PW l and PW4. It was argued that the witnesses could n ot have recognized the first appellant as firstly, the light in the room was directed at them by the assailant. 8 . 9 It was further contended that the ordeal did not take long and that t hey were filled with fear which resulted in the opportunity for recognition being unreliable as it was poor and there was the possibility of the witnesses making an honest mistake. It was contended that PWl could have still made an honest mistake when she recognized the first and second appellants wh o she went to school with in primary school. It was further contended that PWl failed to give the features of the men she recognized when sh e gave her statement to the police. 8 .10 In the case of Mwansa Mushala vs The People5 the Supreme Court guided that- "Although recognition may be more reliable than identification of a stranger, even when the witness is purporting to recognize someone who he knows, the trial -JlS- Judge should remind himself that mistakes in recognizing of close relatives and friends are sometimes made and of the need to exclude the possibility of honest mistake." 8.11 The lower court considered the possibility of the witnesses making an honest mistake and ref erred to the case of Chimbo and others vs The People6 in this regard. 8.12 The lower court found that PWl identified the first appellant in the sitting room with the aid of th e torch light and also recognized the second appellant when she went outside the house with the aid of the moonlight. It was PW4's evidence that she recognized PW 4 , who sh e called by his other name Boko and that he insulted her and pushed her to go back into the house. 8.13 With these factors , we are satisfied that the possibility of an h onest mistake was properly discounted by the learned trial Judge. The lower court then went on to find that the two witnesses PW 1 and PW 4 had a cordial relationship with the appellants and had no motive to falsely implicate them. 8.14 The court found that there was no danger of false implication and that they both stated that they could not r ecognize the short man that they found outside the house in the company of the second -J16- appellant, clearly indicating that they did not want to falsely implicate anyone. 8. 15 The lower court relied on the case of Ezious Munkombwe and others vs The People7 and that of Saidi Banda vs The People8 , when it come to the conclusion that the circumstantial evidence pointed at the appellants as the persons who formed a common purpose and murdered Deedwell Hachoongo on the fateful night. The court rejected the alibis that were raised by the appellants as afterthoughts as they were not raised at the earliest opportunity. 8 . 16 The lower court was of the view that the circumstantial evidence had taken the case out of the realm of conjecture and attained a degree of cogency which permitted only an inference of guilt. The Appellants were convicted for the murder of Deedwell Hachoongo and were sentenced accordingly. 8.17 A perusal of the judgment of the lower court reveals that the learned Judge employed meticulous analysis of the evidence on record and made many finding of fact that led him to conclude that the appellants murdered the deceased when they shot him on the material night. -J17- 8. 18 The lower court made findings of fact which related to the basic facts and he accepted them as established. Those facts point to the guilt of the first and second appellants. 8.19 The learned trial Judge did not accept as credible the explanations that were proffered by the appellants in their respective defences. We are of the view that the circumstantial evidence was overwhelming and compelling, warranting the convictions of the appellants. 9.0 CONCLUSION 9. 1 The net result is that the appeal is dismissed for lack of merit. The convictions and sentences are upheld. COURT OF APPEAL ENT ~ ~ P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE -J18-