Davison Matafwali and Peter Mankishi v The People (Appeal No 118,119/2022) [2023] ZMCA 322 (20 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No 118, 119/2022 BETWEEN: DAVISON MATAFWALI 1st APPELLANT PETER MANKISHI AND THE PEOPLE 2 nd APPELANT 1/ RESPONDENT CORAM: Mchenga DJP, Ngulube and Muzenga JJA On 22nd March 2023 and 20th November 2023 For the Appellants: Ms. M. Marabesa - Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. J. Phiri Banda State Advocate/ National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. George Phiri v the People appeal no 18 of 2019 2. Yoani Manongo v the People (1981) ZR 152 (SC) 3. Mwewa Murano v the People (2004) ZR 207 4. Saidi Banda v the People SCZ Selected Judgment No 30 of 2015 5. Simon Malambo Choka v the People Legislation referred to: 1. The Penal Code Chapter 87 of the laws of Zambia. 1.0. INTRODUCTION J2 1.1. The appellants were charged with one count of the offence of murder contrary to Section 200 of the Penal Code Chapter 87 of the Laws of Zambia. The particulars of the offence alleged that the appellants on the 10th of April 2019 at Solwezi in the North Western Province of the Republic of Zambia jointly and whilst acting together with other persons unknown, did murder Richard Njobvu. The appellants were subsequently convicted and sentenced to death by Lamba J. 1.2. They have appealed against the conviction and sentence on the basis that the trial court convicted them on insufficient and unsupported evidence. 2.0. EVIDENCE IN THE COURT BELOW 2.1. The appellants' conviction was secured by the evidence of seven prosecution witnesses. The evidence implicating the appellant was profiled by PW1 the last person to have been seen with the deceased before he met his fate. According to PW1, the deceased had been drinking beer with him that evening until close to 23:00 hours when they parted at the point where the deceased went to his home. 2.2. PW1 proceeded to his bar called O Pub. He found the bar open and instructed the workers to close as it was late. Shortly after that, he heard someone shout for help outside. He rushed there and found the first appellant leaning against the wall, while the 2nd appellant and another person by the name of Danny were standing at the same place. He then J3 saw a person lying down facing upwards. He asked the first appellant what he had done to the deceased but did not answer. He went to the person lying down and realized it was the deceased, the person he had been drinking with earlier. He called out for help, and the trio ran away when people came. 2.3. The rest of the material witnesses PW2, PW3 and PWS placed the appellants at the scene. PW3, the girlfriend of the 1st appellant, narrated that on the night when the deceased was killed, the first appellant asked her to pack her things and leave as they had assaulted someone and felt that person might die. PW3 was detained in police custody for a day, while the rest were detained in police custody for slightly over two weeks. 2.4. PW6 and PW7 were the police officers who visited the crime scene and investigated the matter. PW7 narrated that the second appellant was apprehended at Kyawama market two days after the incident. A month later, the p t appellant was apprehended. He was found in possession of a star screwdriver, which he attempted to use to stab the PW6, the officer who was apprehending him. 2.5. The postmortem exa mination indicated that the deceased suffered a single puncture wound which injured the heart leading to his death. 2.6. This marked the end of the prosecution case. The appellants were found with a case to answer, and they were put on their defence. 3.0. THE DEFENCE J4 3.1. In his defence, the first appellant opted to give sworn evidence and called no other witnesses. His account of how the events unfolded on a fateful day was that he was at the O pub with the 2nd appellant and PW3. They left around 22:00 hours. About a month later he was apprehended in connection with the deceased's death which he denied having anything to do with it and added that he did not even know him. 3.2. In his defence, the second appellant told the trial court that on the fateful day, he went to drink beer at O Pub with his friend Brian and they left around 22:00 hours. He was apprehended 2 days later at Kyawama market in connection with the murder of the deceased. He denied beating the deceased. 3.3. This marked the end of the defence case. 4.0. FINDINGS AND DECISION OF THE TRIAL COURT 4.1. After careful consideration of the evidence before him, the learned trial court found that all the appellants, the deceased, PWl, PW2, PW3, PW4 and PWS were at the O Pub on the material day. The trial judge also found that there was no direct evidence of the killing of the deceased. On the totality of the evidence on the record, the trial court relied on the circumstantial evidence and the appellants were convicted and sentenced to death. 5.0. GROUNDS OF APPEAL JS 5.1. Unhappy with the High Court judgment, the appellants launched the present appeal against conviction and sentence, fronting two grounds of appeal structured as follows: (1) The court below erred in law and in fact when it convicted the appellants on the evidence of a confession from PW3. (2) The lower court erred in law and in fact when it convicted the appellants of murder when malice aforethought was not proved beyond all reasonable doubt. 6.0. THE APPELLANT'S ARGUMENTS 6.1. The gist of the appellant's argument in su pport of ground one of the appeal was that there is no evidence on the record to support the alleged confession by the 1st appellant to PW3. To buttress this argument, we were referred to the case of George Phiri v. The People1 in which we held that: "It is worth noting that even if the confession statement was excluded, the damning evidence of leading to the dead body of the deceased child would have inevitably led to a conviction." 6.2. Learned counsel thus argued t hat a confession alone cannot lead to a conviction without supporting evidence from t he prosecution. 6.3 . It was the learned counsel's further submission that the prosecution failed to prove this case beyond reasonable doubt. According to counsel, there is J6 no evidence t hat supports the accusation that the appellants did murder the deceased. We were referred to the case of Yoani Manongo v. The People2 where it was held that: "The evidence of all prosecution witnesses should be tested and if it is found to fall short of the required standard in criminal cases, namely, proof beyond all reasonable doubt, an acquittal must follow." 6.4. In support of ground t wo which was argued in the alternative, it was the learned counsel's submission that since the prosecution failed to establish the element of malice aforethought on the part of the appellants, the charge of murder ought to be reduced to manslaught er. In support of this, we were referred to the case of Mwewa Murono v. The People3 in which it was held that: "In criminal cases, the rule is that the legal burden of proving every element of the offence charged, and consequently t he guilt of the accused lies from beginning to end on the prosecution." 6.5. We were urged to allow the appeal and set aside the conviction as the prosecution fai led to prove the case beyond all reasonable doubt. 7.0. RESPONDENT'S ARGUMENT 7.1. In responding to ground one of the appeal, it was submitted that the court below was on firm ground when it convicted the appellant on the evidence J7 of suspect evidence. It was contended that the trial court did not only rely on the evidence of PW3 but also the circumstantial evidence on the record. We were referred to the case of Saidi Banda v. The People4 where the court held that: "We must state at the outset that it is competent in some instances to convict upon circumstantial evidence. The law with respect to circumstantial evidence has been restated many times by this court, and it is that, in order to convict based on circumstantial evidence, the exculpatory facts must be incompatible with the innocence of the accused and incapable of explanation upon any other hypothesis than that of the accused's guilt." 7.2. It was learned counsel's submission that there is compelling circumstantial evidence on the record that is so cogent that it takes this case out of the realm of conjecture and leads to an inference of the appellants' guilt. It was contended that the first appellant was found leaning against the wall while the second appellant was standing nearby where the deceased lay facing upwards with eyes open and bleeding from the nose. According to learned counsel, the appellants had an opportunity to commit the said offence. 7.3. With regards to the appellants' contention that the prosecution did not establish malice aforethought and thus the offence should be reduced to manslaughter, counsel submitted that malice aforethought was established J8 in that the injuries the deceased succumbed to are indicative that the appellants had an intention to cause the death of the deceased or to cause him grievous harm 7.4. In conclusion, we were urged to dismiss the appeal as it lacked merit. 8.0. HEARING OF APPEAL AND ARGUMENTS CANVASSED 8.1. At the hearing of the appeal, learned counsel for the appellant, Ms. Marebesa placed full reliance on the documents filed. On behalf of the state, learned counsel, Ms. Banda informed the court that the state would equally rely on the heads of argument filed before the court. 9.0. CONSIDERATION AND DECISION OF THE COURT 9.1. We have considered the evidence led in the court below, the trial judge's judgment and the arguments advanced by the parties. It is our considered view that the issue is whether the appellants' conviction is sound on account that the evidence mainly implicating them is that given by suspect witnesses. 9.2. We note that learned counsel for the appellants argued in ground one that a conviction on uncorroborated evidence of a confession is untenable at law. This is not the correct statement of the position of the law. We wish state that it is possible to convict a solely on evidence of a well proven confession without any requirement for corroboration. The argument therefore in ground one is devoid of merit and we dismiss it. 9.3. In respect to ground two, the appellants contend at the prosecution had not established malice aforethought and as such the alternative verdict should J9 be manslaughter. In our jurisdiction, malice aforethought for murder includes intention to cause grievous harm. We therefore agree with the argument by the state that the extent of injury sustained by the deceased clearly shows that the assailant intended to cause grievous harm, which suffices for malice aforethought. We thus find ground two to be equally bereft of merit and we dismiss it. 9.4. Despite finding no merit in both grounds of appeal, we note that the evidence against the appellants is circumstantial, as there was no eyewitness to the murder. The circumstantial evidence is largely given by witnesses requiring corroboration, as they are suspect witnesses on account of having been detained. In the case of Simon Malambo Choka v the People5 it was held that: "A witness with a possible interest of his own to serve should be treated as if he were an accomplice to the extent that his evidence requires corroboration or something more than a belief in the truth thereof based simply on his demeanour and the plausibility of his evidence. That "something more" must satisfy the court that the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the suspect witness". 9.5. In respect of the 1st appellant, PWl found him leaning against the wall of the deceased's house and asked him 3 times what he had done and he did JlO not answer. The first appellant also told his girlfriend PW3 that he had assaulted someone. Upon being apprehended, the first appellant was found with an instrument which could possibly have inflicted the injury suffered by the deceased. We have no doubt that these circumstances coupled with the sudden disappearance of the first appellant from the village corroborate or provide evidence of something more which effectively rules out the danger of false implication by the suspect witnesses. The fact that he was found with an instrument which could inflict the injury which occasioned the deceased's death and his attempt to stab PW6 with it during arrest provides support for the suspect witnesses evidence. We cannot fault the trial judge for convicting the first appellant as there is overwhelming circumstantial evidence implicating him. 9.6. We now turn to consider the evidence implicating the second appellant. Despite the second appellant being placed on the scene of the crime by PWl, a suspect witness, there is basically no corroboration or evidence of something more to link him to the commission of the offence. We are of the considered view that the conviction of the second appellant was not sound. Had the trial court properly directed itself, she would no doubt have reached a verdict as ours. We therefore set aside the second appellant's conviction. 10. CONSIDERATION AND DECISION OF THE COURT Jll 10.1. Having found no merit in the first appellant's appeal, we accordingly dismiss it. The conviction and the sentence is upheld. 10.2. Having found merit in the second appellant's appeal, we allow it. We set aside his conviction and sentence. We set him at liberty forthwith. C. F. R. CHEN DEPUTY JUDGE PR P. C. M. NGULUBE COURT OF APPEAL JUDGE ······~ ······· ······ · K. MUZENGA COURT OF APPEAL JUDGE