Gift Ng'ambi and Mike Sikazwe v The People (Appeal No. 45A, 45B/2023) [2024] ZMCA 253 (21 June 2024)

.,. IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No.45A,45B/2023 BETWEEN: GIFT NG'AMBI MIKE SIKAZWE AND THE PEOPLE - - - - - j~ ') j Jl): 1 ~J:11 LREGIS 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM: Mchenga, DJP, Muzenga and Chembe, JJA On 20th February 2024 and 21st June 2024 For the Appellant: Mr. B. Banda, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Ms. S. Muwamba, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT MUZENGA JA, delivered the Judgment of the Court. Cases referred to: 1. Mwiya & Ikweti v The People (1968) ZR 53 2. Kangwa Esther Rozaria v The People - Supreme Court Appeal No.167/2020 J2 3. Ernest Mwaba & Others v The People (1987) ZR 19 4. Jackson Kamanga & 4 Others v The People - SCZ Appeal No. 30,31,32,34/2020 5. Robson Chizike v The People - CAZ Appeal No. 94 of 2020 6. Francis Mayaba v The People - Supreme Court Judgment No. 5 of 1999 7. Hassan Kainda v The People - CAZ Appeal No. 220 of 2020 8. Nyambe Kimba v The People - CAZ Appeal No. 09 of 2022 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia. 1.0 INTRODUCTION 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. 1.2 The particulars of the offence alleged that on 30th December 2021, at Lusaka in the Lusaka Province of the Republic of Zambia, the appellants murdered Martin Phiri . 1.3 They were subsequently sentenced to death by B. C. Mbewe, J and have appealed against the conviction and sentence alleging that the prosecution did not prove its case beyond all reasonable doubt. J3 2.0 EVIDENCE IN THE COURT BELOW 2.1 The evidence of five prosecution witnesses secured the appellant's conviction. A summary of the prosecution evidence as presented in the court below is that sometime on 30th December 2021, the deceased was caught as a suspected thief at a Mr. Matibini's premises in Chawama Compound around 02:00 hours, when he was pulled from the top of a wall fence, in a thwarted attempt to escape. 2.2 He was then beaten by a mob of Chawama residents which included the appellants. Suggestions were made to take him to the police but all fell on deaf livid ears as the community had at the time experienced a welter of robberies in the area. A substance was poured on him as the appellants were heard among the crowd talking about torching the deceased. At this point, the deceased's hands and legs were tied. 2.3 The second appellant then lit a match stick and torched the deceased . PWl then rushed to inform the relatives of the deceased who came through and attempted to put out the fire successfully. The police were informed who came and picked up the deceased to take him to the University Teaching Hospital. Unfortunately the deceased died on J4 the way. Investigations were instituted which led to the arrest of the appellants. 2.4 A postmortem was conducted on the body of the deceased and the cause of death was found by Dr. Victor Telendi as blunt impact trauma to the head, torso and extremities with burns. 2.5 This marked the end of the prosecution evidence. The appellants were found with a case to answer and they were put on their defence. 2.6 In their defence, the appellants opted to remain silent. 3.0 FINDINGS AND DECISION OF THE TRIAL COURT 3.1 The learned trial judge considered the evidence before him and found on the strength of Section 22 of the Penal Code that the appellants were joint adventurers for an unlawful purpose. The trial judge also found that on the totality of the evidence adduced and all the authorities cited and relied on by the parties, the prosecution had proved its case against the appellants and went on to convict them of murder and sentenced them to death. JS 4.0 GROUNDS OF APPEAL 4.1 Unsettled with the conviction and sentence, the appellants launched the present appeal fronting three grounds of appeal structured as follows: (1) The learned trial court erred both in law and in fact to admit a confession statement purportedly made by the appellant in the absence of all the evidence that could have been called to grace the record of the trial court in ensuring that the said confession did not prejudice the appellant in any way. (2) The trial court erred in law and in fact in finding that there was no contradictory evidence before the court to make in favour of the appellant given that there was a mob instance justice involved in the beating and therefore it was not clear from the record who among the alleged assailants unleashed a fatal blow that consigned the victim to death. (3) The trial court erred in law and in fact when it found that there was glaring evidence proving common purpose for the subject offence of murder where the evidence on record shows that this commission of the offence arose from an instant mob justice of beating. 5.0 THE APPELLANT'S ARGUMENTS 5.1 The gist of the appellant's submission in support of ground one of the appeal was that the learned trial judge erred when he allowed evidence J6 of a confession to grace the court's record without firstly enquiring about the voluntariness of the said confession. We were referred to the case of Mwiya & Ikweti v The People1 where the Court of Appeal, the forerunner to the Supreme Court, held that: "In a trial before a magistrate or a judge sitting without a jury, when the magistrate or judge is the judge of both law and fact, a trial-within-a-trial to determine the admissibility of a confession is, to say the least, in the words of Conroy, C. J., in Lukere's [4] case "not wholly apt." I consider it most undesirable that the judge or magistrate should have to make a preliminary finding involving the credibility of an accused prior to putting him on his defence. · In my experience when a statement is ruled as inadmissible it is usually as a result not so much of what the accused has said in evidence but as a result of answers given in cross-examination of the prosecution witnesses seeking to produce it. But the issue here is whether there should be a trial-within-a trial to establish whether a confession has been made or not. I can see no reason why this question, which is purely one of fact, should be the subject of a preliminary issue any more than any other matter of fact adduced in evidence of the prosecution - such as to the evidence of an eye-witness as to an act done by the accused when the accused's defence is, or will be, one of alibi. As to the question of prejudice, if an accused submits that he never made an alleged confession, the question of whether it was voluntary, that is to say, whether as a matter of law, it is admissible in evidence against him, cannot arise. I cannot imagine any judge or magistrate, J7 having found as a fact that a statement was not made, nevertheless being influenced by its contents." 5.2 Learned counsel urged us to allow this ground of appeal as the evidence on which the trial judge heavily relied was wrongly admitted into evidence. 5.3 In support of the second ground of appeal, it was learned counsel's contention that there is strong and persuasive evidence from PW3, Dr. Victor Telindly, an independent witness which suggested that the deceased fell unconscious after the beating from a mob and further that the deceased could have died as a result of blunt force trauma to the head, torso and extremities. According to learned counsel, it is not conclusive on what killed the deceased and the finding of fact by the trial court that it was the appellant's actions which killed the deceased was not supported by evidence on the record. Counsel invited us to interfere with the finding of fact made by the trial court. 5.4 In support of ground three of the appeal, it was learned counsel's contention that there is no evidence that the appellants are the ones who unleashed the final fatal flow which caused the death of the deceased. Counsel went on to contend that this was a case of mob J8 justice and the trial court was wrong to find the appellant guilty of murder. 5.5 All in all, we were beseeched to allow this appeal, quash the appellant's conviction, set aside the sentence and set them at liberty. 6.0 RESPONDENT'S ARGUMENT 6.1 On behalf of the respondent, the learned counsel in response contended that the trial court was on firm ground when it convicted the appellants of the offence of murder. In responding to ground one of the appeal, it was learned counsel's submission that despite the confession evidence having graced the record of appeal without the trial court inquiring about its voluntariness, it is clear that the trial court did not rely on the said evidence when reaching its decision. 6.2 In support of the second ground of appeal, it was learned counsel's contention that the burning contributed to the death of the deceased. We were referred to the case of Kangwa Esther Rosaria v The People2 in which the Supreme Court guided "that an expert witness makes findings of fact and therefore renders his opinion thereon." J9 6.3 It was the respondent's further contention that even if the post mortem report is said to be inconclusive on the cause of death, there is evidence of non-expert eyewitnesses who testified that the deceased was assaulted including being set ablaze. 6.4 In support of the last ground of appeal, it was contended that there is evidence that the appellants participated in a concerted enterprise of meting out instant justice on the deceased and that the appellants actively participated in assaulting the deceased thereby causing his death. According to learned counsel, the cumulative effect of the assaults on the deceased overcame him and there being no evidence of anyone having struck the fatal blow, all the participants are equally liable for having caused the death of the deceased. We were referred to the case of Ernest Mwaba & Others v The People3 where it was held that: "Where joint adventurers attack the same person then, unless one of them suddenly does something which is out of line with the common scheme and to which alone the resulting death is attributable, they will be liable. Where the evidence shows that each person actively participated in an assault then they were all crimines participes. The fact that other persons may have also assaulted the deceased at one stage can make no J10 difference where the nature of the assaults was such that their cumulative effect overcame the deceased." 6.5 We were urged to uphold the conviction and sentence and dismiss this appeal for want of merit. 7.0 HEARING OF APPEAL 7.1 At the hearing of the appeal, learned counsel for the appellant, Mr. Banda, Senior Legal Aid Counsel, placed full reliance on the documents filed. On behalf of the State, Ms. Muwamba, Deputy Chief State Advocate, informed the court that the State would equally rely on the heads of argument filed before the court. 8.0 DECISION OF THE COURT 8.1 We have carefully examined the judgment of the lower court and the arguments in support and in opposition to the appeal. We shall consider ground one and then consider grounds two and three together as they are related. 8.2 The first ground of appeal assails the trial court's reliance on the confession statements which were not properly placed on the record of the court. The said confessions were narrated by PWS, the arresting officer at the time he was giving his evidence. The trial court did not Jl l inquire from the appellants, at the time PWS was giving evidence, if the confessions were voluntary. This was a serious misdirection. The Supreme Court has guided on several occasions and we have reiterated the said guidance on a number of occasions to trial courts. The guidance is that, whenever an officer is giving confession evidence, the trial court should inquire from the accused person if it was voluntary. This is irrespective of whether or not the accused person is represented by counsel (see the cases of Jackson Kamanga & 4 Others v The People4 and Robson Chizike v The People5 ). 8.3 We therefore agree with learned counsel for the appellants that the trial court erroneously relied on confessions which were placed on the record of the court in violation of well-established rules. In the premises, we have no hesitation in expunging the same from the record of the court and we so do. Consequently, we find merit in ground one of the appeal. 8.4 We now turn to consider grounds two and three. As we see it, the issue is whether the appellants caused the death of the deceased and if so, whether a conviction of murder is tenable. There is no doubt that the appellants together with a mob took part in assaulting the J12 deceased leading to his death. There is further no dispute that the deceased met his fate at the cold hands of a mob. The issue of whether the assault caused the death of the deceased cannot be doubted. The deceased after being caught as a suspected thief was beaten by a mob and subsequently torched. The pathologist found the cause of death to have been blunt force trauma to the head, torso and extremities with burns. The appellants took part in assaulting the deceased and in torching him. Therefore, both activities or acts are captured in the cause of death. The trial court cannot be faulted for finding that the actions of the appellants caused death of the deceased. We thus find no merit in this argument as we see no ambiguity or uncertainty as to the cause of death. 8.5 The law relating to murder resulting out of activities of a mob in the quest to deliver mob justice is well settled in our jurisdiction. In the case of Francis Mayaba v The People6, the Supreme Court stated that: "We have examined the evidence on record and the judgment of the learned trial judge and we have also considered the arguments by both counsel and we agree with them that the facts of this case do not support the conviction of murder because quite apart from the J13 element of provocation and drunkenness negativing intent to kill, this was a case of mob instant justice and there is no evidence that the appellant or indeed the juvenile offender delivered the fatal blow that caused the death of the deceased. We would therefore allow the appeal and quash the conviction for murder and substitute a conviction for manslaughter contrary to Section 199." 8.6 In the Ernest Mwaba & Others case supra, the appellants were convicted of manslaughter and sought to have the conviction set aside and substituted with one for common assault as it was not clear who inflicted a fatal blow on the deceased. The Apex Court in upholding the conviction for manslaughter stated that where the evidence shows that each person actively participated in an assault then they were all crimines participes. The fact that other persons may have also assaulted the deceased at one stage can make no difference where the nature of the assaults was such that their cumulative effect overcame the deceased. 8.7 In casu, we note that there is evidence on the record to the effect that, at the time the deceased was apprehended around 02:00 hours the Chawama community during the period experienced a welter of robberies in the area. J14 8.8 We note that many people gathered and assaulted the deceased. They cannot be said to have been people who set out with a common design to occasion the deceased grievous harm. Being an instant mob justice, it is not certain that it is the appellants who delivered the fatal blow that caused the death of the deceased. The evidence is clear that the mob constituted different people who came from different locations in the Chawama Compound, who sporadically inflicted injuries on the deceased. In the circumstances it cannot be said that the mob formed the requisite common purpose for murder (see the cases of Hassan Kainda v The People7 and Nyambe Kimba v The People8 ). 8.9 We are of the view that in the circumstances of this case, the offence committed was not murder but manslaughter. On this score, we agree with counsel for the appellant and find merit in the appeal. 9.0 CONCLUSION 9.1 Having found merit in the appeal, we allow it. We quash the conviction for murder and set aside the sentence of death. We instead find the appellants guilty of manslaughter contrary to Section 199 of the Penal Code. JlS 9.2 In sentencing, we have taken into consideration the circumstances in which the offence was committed. We thus sentence each appellant to 5 years imprisonment with effect from 27th October 2021, the date they were apprehended and taken into custody. DEPUTY JUDGE PRESIDENT ········~ ······ K. MUZENGA COURT OF APPEAL JUDGE ·· ············· ··~ ·········· · Y. CHEMBE COURT OF APPEAL JUDGE