Ignitious Botha v The People (APPEAL NO. 31/2024) [2025] ZMCA 23 (21 February 2025)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO . 31/2024 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: IGNITIOUS BOTHA AND THE PEOPLE ..," iu"c o :.1 ,;-~OU:• QI - \,,. ,;:('•·, .. £_T U ~ .. I•: /r-- ... ._ I L ' rt ,..,., .. O INAL-REGIS ~ \. I /J. APPELLANT RESPONDENT CORAM: Mchenga DJP, Ngulube, and Chembe , JJA On 13th January, 2025 and 21 st February, 2025. For the Appellant: Mr. I Yambwa - Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mrs. R Malibata- Jackson - Senior State Advocate, National Prosecut ions Authority JUDGMENT CHEMBE, JA delivered the j udgment of the Court Cases referred to: 1. Choka v The People (1978) ZR 243 SC 2. George Musupi v The People (1978) ZR 271 3 . Chimbo and Others v The People (1982) ZR 20 SC 4. Chrispin Nsondo v The People (1981) ZR 302 5. Simutenda v The People 6. Saluwema v The People (1965) ZR 4 (CA} 7. Andrew Mwenya v The People SCZ Appeal No 640 of 2013 8. Machobane v The People (1972) ZR 101 (CA) 9. Nchepeshi v The People (1978) ZR 362 10. Zonde v The People (1981) ZR 337 (SC) 1.0 INTRODUCTION 1.1 This is an appeal against the decision of Majula J (as she then was) dated 21st July 2021. 1.2 The Appellant was charged and convicted of one count of murder contrary to section 200 of the Penal Code. Particulars of the offence were that the Appellant murdered Elvin Maposa on 26 th June 2015 at Lusaka. 2 .0 THE PROSECUTION'S CASE 2 . 1 The prosecution called 6 witnesses in support of its case . In a nutshell, the evidence adduced by the prosecution was that on 26 th June 2015, the deceased was a pprehended at a farm by Jeremiah Sakala PW2 and Wilson Banda who were both security guards. Steven Phiri (PW2) was alerted to the s cene by J2 the shouting by the guard. The deceased was sitting on the ground being questioned by the guard when the Appellant arrived at the scene armed with a firearm. 2 .2 The Appellant proceeded to fire in the air and immediately thereafter aimed at the deceased and shot him in the stomach despite being cautioned not to by the guards. 2 . 3 There was evidence that the deceased had been beaten by a mob of people earlier when he attempted to run away. However , the evidence of PWl , PW2 and PW3 , Charles Kalumba was that at the time the deceased was shot by the Appellant h e was sitting on the ground. The three witnesses denied the suggestion by defence counsel that was a scuffle between the Appellant and the deceased before the firearm discharged. 2.4 The prosecution also adduced evidence from PW4 that h e h ad handed over his firearm , a colt 22 to the Appellant for repairs earlier that day. The forensic ballistic expert who t estified as PWS told the Court he examined a colt pistol of 22 calibre serial No 11601 together with cartridges that were picked from the crime scene. The examination revealed that empty cartridges had been fired from the firearm. J3 2 .5 The arresting officer testified as PW6. His evidence was that upon receiving a report of murder, he visited the crime scene where he recovered the pistol and picked some empty cartridges which he subsequently handed over to the ballistic expert. 2 . 6 It was also his evidence that medical report showed that the bullet that killed the deceased had perforated some organs in the body and had exited. 3 .0 THE DEFENCE 3 . l In his defence , the Appellant denied shooting the deceased. His testimony was that on the night in issue, he was carrying a 410 shot gun whilst patrolling the farm. He fired at some cats and later heard a commotion about a thief being caught. As he walked towards the armoury he bumped into the deceased. The firearm fell near the deceased who grabbed it. He wrestled for the gun with the deceased and it discharged a bullet. The deceased was dragged away by a mob of people who started beating him. He left the deceased being beaten and went to sleep. 3 .2 The following morning he took the pistol which had been brought for repairs by PW4 to the firing range where he fired it. J4 PW6 la ter picked up the spent cartridges from the firing range. He was later arrested for murder. He informed the Court that the prosecution witnesses had lied that he shot at the deceased. 3.3 The Appellant denied having fired any gunshots during the incident and challenged the cause of death r evealed by the pathologist. 4 .0 FINDINGS OF THE TRIAL JUDGE 4 . 1 The learned trial Judge accepted the evidence of PW 1, PW2 and PW3 that the Appellant h ad aimed and fired at the deceased whilst h e was on the ground being questioned. She disregarded the Appellant's version of events that h e did not open fire or shoot the deceased. 4 .2 The trial Judge found that ther e was sufficient evid ence showing that the deceased died from gunshot wounds suffered at the hands of the Appellant. She also accepted that the Appellant had aimed at the deceased before shooting him. She convicted him of murder and sentenced him to death. JS 5.0 THE APPEAL 5 .1 Displeased with the decision of the Court below the Appellant launched an appeal fronting the following grounds; 1. The learned trial Court erred in law and fact when it convicted the Appellant on u ncorroborated evidence of witnesses with their own interest to serve. 2 . The learned trial Court erred in law and fact when it rejected the Appellant's explanation and defence which could reasonably be true. 6 .0 APPELLANT'S ARGUMENTS 6.1 The Appellant filed h eads of argument in support of the a ppeal on 6 th January 2025. In relation to the first ground of appeal, the Appellant submitted that PW 1, PW2 and PW3 were witnesses with their own interest to serve as they were all employed at the farm where the deceased m et his death. It was contended that in view of the evidence that the deceased appeared to have been beaten, the witnesses had a motive for falsely implicating the Appellant. 6 .2 The Appellant argued that the evidence of the three witnesses n eeded to be corroborated but was not. Reference was made to the cases of Choka v The People 1 and George Misupi v The J6 People2 in which the Supreme Court guided th at the evidence of a witness with an interest of his own to serve requires corroboration. 6 . 3 We wer e also ref erred to the case of Chimbo and Others v The People3 in support of the argument the evidence of one suspect witness cannot corroborate that of another suspect witness. 6 .4 In support of the second ground of appeal, it was submitted that the Appellant had given a truthful account on what transpired which the Court rejected . Relying on the case of Chrispin Nsondo v The People4 , it was argued that lying could not be interpreted as evidence of commission of the crime. 6 . 5 The Appellant also challenged the trial Court's finding that the explanation that he struggled with the deceased was an afterthought. He submitted the explanation arose during the prosecution case. 6 .6 A further submission by the Appellant was that section 17 of the Penal Code permitted the use of reasonable force to repel an unlawful attack. It was argued that the defence of self defence was available to the Appellant as the deceased had picked up his gun. J7 6 . 7 The case of Simutenda v The People5 was referred to in support of the argument that the defence of provocation was available to the Appellant who was said to have lost self-control after the deceased bumped into him. It was also submitted the shooting was accidental as the gun fired as the Appellant struggled to wrestle the fire from the deceased. It was argued that there was no malice afore thought to support a conviction for murder. 6 .8 The Appellant maintained that his explanation was reasonably possible and he should have been acquitted as the burden of proof was not discharged in line with the decision in Saluwema v The People6 . '7.0 RESPONDENT'S ARGUMENTS 7 . 1 In response to the first ground of appeal, the Respondent retorted that PWl, PW2 and PW3 were not witnesses with an interest to serve as there was nothing to suggest that they had a motive for falsely implicating the Appellant. 7 .2 Our attention was drawn the case of Andrew Mwenya v The People7 where the Supreme Court guided that a motive to give false evidence had to be revealed in order to classify one as a J8 suspect witness. It was contended that there was no evidence that the three witnesses took part in beating the deceased. 7 .3 In relation to the second ground of appeal, the Respondent recounted the evidence and submitted that the Appellant h ad denied shooting the deceased at all and therefore self-defence, accident and provocation were not available to him. It was submitted that PWl, PW2 and PW3 were credib le disinterested witnesses. 7.4 On the lack of malice aforethought, the prosecution submitted the Appellant ought to have known that shooting the deceased in the stomach could cause death or grievous harm. We were urged to uphold the conviction. 8.0 HEARING 8.1 At the hearing both counsel relied entirely on the written arguments. 9.0 CONSIDERATION AND DECISION 9. 1 We have carefully considered the grounds of appeal and h eads of argument by both sides together with the judgment impugned. The issues raised by the appeal are whether PW 1, J9 PW2 and PW3 should h ave been treated as witnesses with an interest of their own to serve and whose evidence would therefore have required corroboration. The other issue is whether the Appellant's explanation was probable and therefore should not have been rejected. 9 .2 In the case of George Musupi v The People (supra) the Supreme Court d efined a person with a possible interest to serve as follows: "One who because of the category into which he falls or because of the particular circumstances of the case may have a motive to give false evidence. " There is a plethora of authorities in this jurisdiction that decide that the evidence of a witness with a possible interest of his own to serve requires corroboration. These include the cases of Machobane v The People8 , Nchepeshi v The People9 and Zonde v The People 1 0 where adjudicators were guided to be cautious when dealing with suspect witness. 9 .3 The Appellant charges that the trial Judge should not have convicted him on the uncorroborated evidence of PWl , PW2 and PW3 as they were all witnesses with an interest of th eir own to JlO serve. It was submitted that the witnesses were at the scene and may have participated in assaulting the deceased. 9 . 4 We note that the crucial consideration in determining whether a witness may have an interest of his own to serve as decided in the Musupi case is whether he has a motive to falsely implicate the accused. In the present case the Appellant appears to suggest that PW 1, PW2 and PW3 contributed to the deceased's death as they assaulted him. The argument is that they had a motive to lie in order to shield their own crime . 9. 5 However, we note that there was no evidence that the three witnesses in issue assaulted the deceased. The Appellant's own evidence was that the deceased was chased and assaulted by a mob. There was no suggestion that the three witnesses were part of the mob. We do not agree that merely being present at the scene where the deceased was shot renders PW 1, PW2 and PW3 to be suspect witnesses. 9.6 In the case of Andrew Mwenya v The People (supra) cited by the Respondent, the Supreme Court in r ej ecting that some witnesses called by the prosecution should have been classified as witnesses with an interest to serve stated as follows: Jll "We have examined evidence on record and have found nothing in the evidence presented before the trial Court that could warrant classifying the prosecution witnesses as witnesses with an interest of their own to serve. No motive to give false evidence against the Appellant on the part of the prosecution witnesses was revealed before the trial Court. In the circumstances of this case there was no need for the trial Court to approach the prosecution witnesses with caution." 9 . 7 Similarly in the present appeal, we cannot fault the trial Court for not considering PW 1, PW2 and PW3 as witnesses with an interest of their own to serve. The first ground of appeal lacks m erit and it is dismissed. 9.8 In the second ground of appeal, the Appellant challen ges the rejection of his explanation by the trial Court. It was submitted th at the explanation by the Appellant was proba ble. The Appellant's explanation at trial was that the deceased h a d picked up the firearm and he had wrestled him to retrieve it. In the process of the struggle the gun discharged. 9 . 9 However, h e also denied that th e gun he held shot th e deceased or was fired at all. His evidence was th at he only repaired the pistol in issue after the incident and only fired it at the firing range. He denied tha t any spent cartrid ges could have b een J12 recovered from the scene. Clearly his explanation was replete with serious inconsistences. 9 .10 We note that the Appellant whilst referring to the inconsistences noted by the learned trial Judge , has not attempted to reconcile the inconsistences or indeed state which statement was probable. Our view is that considering the eye witness testimonies that the Appellant aimed and shot at the deceased and the Appellant's incoherent explanation, no reasonable Court could have found the explanation to be probable. 9 .11 There was evidence from PW5 that the bullet cartridges that were recovered at the scene were fired from a 22 calibre pistol. There was also evidence that PW4 had given the Appellant the 22 calibre pistol to repair earlier on the date of the incident. The Appellant admitted that he was the only person carrying a firearm at the scene. This evidence corroborated the evidence of the prosecution witnesses that it was the Appellant who shot the deceased. 9 . 12 We find it odd that PWl, PW2 and PW3 were all resident at the farm and the Appellant was their colleague and yet they testified against him. The witnesses in our view would have been J13 motivated to support his evidence . In our view this speaks to their credibility. 9.13 The Appellant has also half-heartedly submitted that the defences of provocation , self-defence and accident were available to him. In the absence of evidence, the defences were not available to him. 9.14 In any event for the Appellant to avail himself of any of these defences, he would have to admit that he shot the deceased which he denied. Further, the overwhelming evidence from PWl , PW2 and PW3 ruled out any of the above defences. Their evidence was that when the Appellant appeared at the scene, the deceased was seated being questioned. The Appellant who was trigger happy in our view decided to mete out vigilante justice by shooting at the deceased. There was no evidence that he was attacked or provoked. We find no merit in the second ground of appeal. J14 10.0 CONCLUSION 10.1 Having found no merit in both ground we dismiss the appeal. We uphold the conviction and sentence of Court below. P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE JlS