Emmanuel Sinkala v the People (Appeal 73/2024) [2024] ZMCA 352 (20 August 2024)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA Appeal 73/2024 (Criminal Jurisdiction) BETWEEN: EMMANUEL SINKALA APPELLANT AND THE PEOPLE RESPONDENT Coram: Mchenga DJP, Majula & Muzenga, JJA On 12 August 2025 and 2()th August 2024 For the Appellant Mrs C. Banda Khayula, Legal Aid Counsel, Legal Aid Board For the Respondent Mr. J. Kafwanka, Acting Senior State Advocate, National Prosecutions Authority JUDGMENT MAJULA JA, delivered the Judgment of the Court. Cases referred to: 1. Joseph Mulenga And Albert Joseph Phiri v. The People (SCZ No. 28 of 2008) 2. Yotamu Haamenda v. The People (1977) ZR 184 (SC) 3. flunga Kalaba And John Masefu v. The People ( 1981) ZR 102 4. Saluwema v. The People (1965) ZR 4 5. Chabala v. The People (1976) ZR 4 6. Nyambe v. The People (1973) ZR 228 J2 7. Mwansa Mushala v. The People (1978) ZR 58 8. Haonga v. The People (1976) ZR 200 9. George Musupi v. The People (1978) ZR 271 (SC) 10. Abedinegal Kapeshi & B est Kanyaku la v The People, S. C. Z. Selected Judgment No. 35 o/2017 11. Nzala v The People (1976) Z. R. 221 12. Cholowa v The People, S. C. Z. Appeal No. 179 of 2011 13. Donald Fumbelo v The People SCZ Appeal No. 476 of 2013 14. Kenmuir v Hattingh (1974) Z. R. 162 15. Katebe v. The People (1975) Z. R. 13). Legislation referred to 1. Penal Code, Ch apter 87 of the Laws of Zambia 1.0 INTRODUCTION 1. 1 The Appellant, Emmanuel Sinkala, was on 28 t h May, 2021, convicted of murder contrary to section 200 of the Penal Code, Chapter 87 of the Laws of Zambia, by the High Court presided over by the Honoura ble Mr. Justice K. Limbani. He was sentenced to death. 1.2 He now appeals against the conviction (and sentence) on the sole groun d that the trial court failed to take into account all of the circumstances of th e case and that the conviction was based on insufficient evidence. In essence, the Appellant contends that th e evidence at trial was inadequate J3 and that his own explanation of events was not properly considered, su ch that it could reasonably have been true. 2.0 PROSECUTION CASE IN THE COURT BELOW 2.1 The main witnesses were the deceased's children, Precious Nambela (PWl) and her younger brother (PW2). Earlier that day, the deceased had been warned by a relative, Elias Sinkala, of a plot involving a "bullet for a wizard," which he dismissed. 2.2 Around 18:00 hours, PWl saw the Appellant, whom she knew from childhood, with Charles Sinkala and Chakwa Sinyinza. Shortly after, the deceased and PW 1 heard the sound of a gun being cocked from the direction of the backyard bathroom, followed immediately by a gunshot. The deceased cried out in pain. 2.3 PWl rushed outside and, by moonlight, saw three figures retreating from the bathroom area. She identified them as the Appellant, Charles, and Chakwa, noting the Appellant's distinctive green gum boots. About an hour later, the Appellant and Charles retu rned, visibly agitated, and helped transport the deceased to hospital. In cross-examina tion, PWl admitted being frightened but insisted she clearly saw the Appellant before and after the shooting. 2.4 PW2 corroborated this account. After hearing the gunshot, he ran towards the bathroom and saw two people fleeing. He J4 recognized one as the Appellant, his relative, carrying what looked like a homemade shotgun. He described him as wearing black clothes and confirmed that he and Charles later returned to help take the deceased to the clinic. 2.5 PW3, a police officer, testified that he found the deceased a t the hospital with multiple gunshot wounds. PWl named the Appellant and Charles as suspects. At the scene, PW3 recovered three metallic pellets consistent with a homemade firearm and noted bloodstains, though no firearm was recovered. The third suspect, Chakwa, evaded arrest. 3.0 DEFENCE CASE 3.1 The Appellant (DWl) denied any role in the shooting, claiming he was in the garden with his brother, Charles Sinkala (DW2), checking water levels at the time. On their return, they found a crowd already gathered at the deceased's house. 3.2 He alleged false implication by Elias Sinkala due to a long standing land dispute, denied knowing Chakwa Sinyinza, and described PWl and PW2 's evidence as fabricated . In c~oss-examination, however, h e admitted wearing green gum boots that day and conceded that a familiar person could be recognized from ten metres away. 3.3 DW2 corroborated the alibi, testifying that they were together in the garden during the incident and only arrived JS afterwards. He too, attributed the allegations to the family land feud . 3.4 DW3 , Justine Sinkala, a nephew of the deceased, said that when he rushed to the scene after the gunshot, PW 1 and PW2 told him they had not seen the shooter. He maintained that Elias Sinkala later accused the Appellant and Charles out of malice arising from the land dispute. 5 .0 GROUND OF APPEAL 5.1 Dissatisfied with the decision of the lower Court, the Appellant has filed this appeal on the following ground: "The trial court erred in law and inf act when the Court failed to take into account all of the circumstances of the case and convicted the Appellant for the offence of Murder based on insufficient evidence." 6 .0 APPELLANT'S ARGUMENTS 6.1 In submissions filed on 16th July , 2025, Counsel stressed that the burden of proof lies on the prosecution to establish guilt beyond a reasonable doubt, citing Joseph Mulenga and Albert Joseph Phiri v. The People1 . 6.2 The trial court was faulted for rejecting the Appellant's alibi. Counsel argued it was consistently raised from the outset, as confirmed by PW3, who nonetheless failed to investigate it. Relying on Yotamu Haamenda v. The People2 and J6 llunga Kalaba and John Masefu v. The People3 , it was submitted that failure to disprove an alibi weakens the prosecu tion's case unless overwhelming evidence exists. 6.3 Counsel highlighted the absence of physical evidence linking the Appellant to the offence. No firearm was recovered, and PW3 neither searched the Appellant's prem ises nor proved possession. This, it was argued, created doubt which should favour the accused, in line with Saluwema v. The People4 and Chabala v. The People5 . 6.4 It was contended that the finding of premeditation based on witchcraft suspicions was speculative, as such remarks came from oth ers, not the Appellant. 6.5 Identification evidence was also challenged. PWl and PW2's testimony was said to be unreliable, given the night conditions and lack of detailed description. Reliance was placed on Nyambe v. The People6 and Mwansa Mushala v. The People, 7 which caution against uncritical acceptance of recognition evidence. 6.6 Counsel pointed to contrad ictions between PWl and PW2's accounts and that of DW3 , who said the witnesses initially admitted they had not seen the assailants. Haonga v. The People8 was cited on the effect of dishonesty on credibility . 6.7 It was further argued that PW2 had a personal motive to implicate the Appellant in light of a family land dispute, a s J7 testified by DW3. Reference was made to George Musupi v. The People9 , which held that once a possibility of malice exists, a conviction cannot safely be sustained. 6.8 Counsel submitted that PWl could not have seen the shooting as she was inside the house, and that other suspects, Oberty Sinkala and Chakwa Sinyinza, who absconded, were more likely responsible. 6. 9 On these grounds, the Court was urged to allow the appeal, quash the conviction, set aside the sentence, and order the Appellant's release. 7 .0 RESPONDENT'S ARGUMENTS 7 .1 In heads of argument filed on 12th August, 2025, the Respondent maintained that the prosecution proved its case beyond reasonable doubt and that the trial court's findings were sound. Reliance was placed on the consistent and unshaken testimony of PWl and PW2 , whose identification of the Appellant included detailed descriptions of his attire. Citing Abedi negal Kapeshi & Best Kanyakula v. The People10, it was urged that credibility assessments are best left to the trial judge. 7 .2 On identification, it was submitted that there was no risk of error since both witnesses knew the Appellant, interacted with him shortly before the incident, and observed him J8 under adequate moonlight. Nyambe v. The People (supra) was invoked. 7.3 The alleged alibi was dism issed as unsupported by independent evidence and inconsistent with Nzala v. The People1 1 , which requires an accused to furnish particulars of alibi witnes ses. Even if considered, it was outweighed by direct eyewitness accounts. 7.4 Counsel rejected the argument of investigative lapse, submitting th at PW3's om1ss10ns caused no prejudice in ligh t of overwh elming evidence against the Appellant. Yotamu Haamenda v. The People (supra) was cited. 7. 5 It was argued that the shooting was a premeditated act ar1s1ng from witchcraft suspicions. The garden alibi was termed an afterthought, citing Cholowa v. The People12 and Donald Fumbelo v . The People13 . 7.6 On the claim of false implication due to a land dispute , counsel clarified that the dispute involved another individual, not PW2 . Further, the flight of other suspects did not absolve the Appellant, who was clearly placed at the scene. 7. 7 The Respondent therefore prayed that the appeal be dismissed and the conviction and death sentence upheld. J9 8.0 HEARING OF THE APPEAL 8.1 The matter was heard on 12 th August, 2025, during which Counsel relied on their respective filed documents. 9 .0 ANALYSIS AND DECISION OF THIS COURT 9.1 We have considered the record, the judgment below, and the submissions of both Counsel. The core issue is whether the conviction was supported by the evidence, specifically, whether the trial court erred in assessing the identification evidence, the alibi, and the surrounding circumstances so that reasonable doubt ought to have been resolved in the Appellant's favour. 9 .2 The Appellant's sole ground is that th e trial judge failed to appreciate that his account could reason a bly have been true, and thus the prosecution did n ot prove its case beyond reasonable doubt. The principle is well-settled that the prosecution bears the burden of proof (see Joseph Mulenga and Albert Phiri v. The People) (supra). Where evidence is credible and sufficient, that burden is discharged and th e conviction stands. 9.3 It is accepted that this case turned on credibility and circumstantial inferen ce. The trial judge believed the prosecution witnesses and rejected th e defence. As an appellate court, we do not lightly disturb findings of fact that hinge on credibility, for the trial judge had the advantage of observing witness demeanour. Unless it is JlO shown that the lower court materially erred , deference must be accorded to such findings . In the oft-cited words of the Supreme Court in Kenmui r v Hattingh14, it was opined: "Where questions of credibility are involved, an appellate court which has not had the advantage of seeing and hearing the witness will not interfere with the findings of fact made by the trial judge unless it is clearly shown that he has fallen into error.'' 9.3 No error is apparent in this case. The record supports the finding that PWl and PW2 were truthful and reliable; they remained firm under cross-examination, and the trial court rightly preferred their testimony to the Appellant's denials. 9.4 While the law requires that an accused's account be accepted if reasonably possible (See Saluwema v . The People (supra) and Chabala v. The People (supra), it does not extend to implausible explanations. The trial court found, and we agree, that the Appellant's version was not credible when weighed against the prosecution's evidence. 9.5 The alibi was directly contradicted by two eyewitnesses who placed the Appellant at the scene. Once their evidence is accepted, the alibi collapses. Although police did not verify the alibi, the overwhelming direct evidence, including the Appellant's own admissions, rendered this om1ss10n immaterial (see Katebe v. The People15) . Jll 9.6 Th e trial judge was also entitled to reject DW2's testimony as lacking credibility due to his interest in the matter. The Appellant himself admitted wearing the green gum boots described by PWl and conceded that recognition in moonlight was possible, details that reinforced the witnesses' accounts. 9 . 7 On identification , we acknowledge the caution articulated in Nyambe v The People (supra). However, this was not a fleeting encounter: the Appellant was a known relative, seen face-to-face shortly before the incident, and iden tified again under moonlight a t close range. Their accounts were corroborative and credible. 9.8 DW3 's contrary eviden ce was disbelieved , given his close relationship to the Appellant and the likelihood of confusion 1n the immediate aftermath of the sh ooting. Minor discrepancies did not undermine the overall consistency of PWl and PW2's testimony. 9. 9 The speculation about witch craft as a m otive was not decisive; motive is not an essential element of murder . The conviction rests on reliable identification evidence, not on motive. 9. 10 The argument that Oberty Sinkala or Chakwa Sinyinza were the real cu lprits is misconceived. The evidence placed the Appellant among the perpetrators. Even if others were J12 involved, that does not absolve him. His post-crime conduct in assisting villagers does not negate guilt. 9.11 In sum, the prosecution's case was compelling, the defence was unconvincing, and the trial court's findings were sound. The evidence established beyond a reasonable doubt that the Appellant, acting with others, shot the deceased. 10.0 CONCLUSION 10.1 We find no merit 1n th e appeal and dismiss it. The conviction and sentence of the Court below are accordingly affirmed . B. M. jula ... .... ~ K. Muzenga •···· ···· ····· COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE