Joseph Phiri and Ors v The People (APPEAL NO 18 -22/2023) [2024] ZMCA 218 (28 February 2024)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO 18 -22/2023 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN JOSEPH PHIRI GIVAS PHIRI AUGUSTINE PHIRI BORNFACE BANDA TRESFORD PHIRI hi! COFZA Of APPEA 2 8 FEB 2024 MINALREGl 80XS0067. JABES GWEREGWEDE PHIRI AND THE PEOPLE APPELLANT D APPELLANT 3RD APPELLANT 4TH APPELLANT 5™ APPELLANT 6TH APPELLANT RESPONDENT CORAM : DJP, MUZENGA AND CHEMBE JJA on 16th January 2024 and 28th February 2024 For the Appellants Mrs. A. Banda - Chimimba - Lega Aid Counsel For the Respondents Mrs. A. Kennedy Mwanza - Principal State Advocate JUDGMENT Cases referred to: 1. Peter Yotum Haamenda v the People (1977) ZR 184 (SC) 2. Mbinga Nyambe v The People (2011) ZR 246 (SC) 3. David Zulu v The People (1977) ZR 151 S. C. 4. Saidi Banda v The People Appeal No. 144 of 2015 5. Ndango v Moses Mulyango and Another SCZ judgment No 4 of 2011 6. Machipisa Kombe v The People (2009) Z. R. 282. 7. Mutambo and 5 others v The People (1965) ZR 15 8. Donald Fumbelo v the People SCZ Appeal No. 476 of 2013 1.0 INTRODUCTION 1.1 The Appellants were charged and convicted of one count o murder contrary to section 200 of the Penal Code and one coun of aggravated robbery contrary to section 294(1) of the Pena Code by Lombe-Phiri J. 1.2 The particulars of offence 1n count one alleged that the Appellants jointly and whilst acting together did murde: Roderick Chibojela Banda on 24 th June 2020 at Vubwi. In the second count, the particulars of offence were that the Appellants jointly and whilst acting together stole K20,000.00 1 laptop bag, 1 bomber jacket, 1 trousers, 7 sacks, 2 black pens 1 T shirt, 1 scale and two had cover books all together value at K22, 360. 00, the property of Rodrick Chibojela Banda, an, at or immediately before or immediately after such stealing di, use or threaten to use actual violence to the said Rodric Chibojela Banda in order to obtain or prevent resistance to th property being stolen. 1.3 The Appellants were convicted on both counts and sentenced t death. They have all appealed against the conviction. 2.0 EVIDENCE BEFORE THE TRIAL COURT 2.1 The prosecution led evidence from 8 witness. The evidence wa that the deceased (who lived in Chipata) had gone to Vubwi t, buy groundnuts and soya beans. 2.2 After collecting money from Chipata on 20 th June 2021, th deceased proceeded to Thenje village on 24 th June 2021 an< never returned. 2 .3 There was evidence that when the deceased left for Thenji village, he was wearing a black bomber jacket and carrying, black laptop bag, empty sacks and a scale. 2.4 The deceased met the 1st Appellant, Joseph Phiri wh accompanied him on his mission. When the deceased failed t return to the village where he was staying, his host went to loo: for him at Thenje village. 2.5 He was directed to the 1s t Appellant who informed him that th deceased had gone to Chipata to collect money. When he failec to locate the deceased, Mr. Phiri reported the matter to th police. 2.6 The 1s t Appellant was apprehended and detained. During th investigations, the police recovered the deceased's black lapto1 which contained a hard cover note book, a pen, a face mask,, motorbike and K50, 000 Malawian kwacha from the 5t Appellant's house. 2. 7 A yellow and red weighing scale was recovered from the 6 t Appellant's house together K900.00 and 5000 Malawia1 kwacha. From the house of the 3 r d Appellant, Augustine Phiri the police recovered the deceased's black bomber jacket and c belt. 2.8 The police also recovered an Itel phone from the 2 nd Appellant house and 7 empty grain 90kg bags from the 4 th Appellant house. 14 corrugated iron sheets and a six inch mattress wer recovered from the 1st Appellant's house. 2. 9 There was evidence from the investigating officer that the 2r Appellant led him to the place where the deceased body wa disposed of on a mountain covered with grass about 1 kilometers away from Thenje village. 2.10 A hammer was recovered about 3km from where the body wa found. 2.11 In defence, the 1st Appellant admitted having met with th deceased on 24 th June 2020 and introduced him to Jabes Phir: Augustine Phiri, Givas Phiri, Bornface Banda, Lloyd Phiri an, Tresford Phiri. He testified that the deceased left for Chipata th same day to collect more money. He explained that the ir01 sheets which were recovered from his house were bought i1 September 2023. 2.12 The 2 nd Appellant denied having present at Thenje village 01 24 th June 2020 as he had gone to Malawi to sell groundnuts He explained that the Itel phone that was taken by the polic was bought in March 2020 . He denied having confessed t 1 killing or robbing the deceased. 2.13 The 3 rd Appellant told the Court that on 24 th June 2020 , the 1: Appellant took the deceased to his house looking fo groundnuts. As he did not have any groundnuts, the decease< left with the 1st Appellant. He denied having participated in thi killing of the deceased. 2.1 4 The 4 th Appellant's evidence was that he could not recall wha he did on 24 th June 2020 but was arrested on 3 rd July 2020 He denied having seen the deceased at all or having led th, police to the deceased's body. 2.15 The 5 th Appellant denied having been in Thenje village on 24tl June 2020 as on that date he was in Mozambique visiting hi: aunt. He explained the KS0, 000.00 which was taken from hi: home had come from the sale of some pigs. He told the Cour that the motorbike which the police took had not moved sine< May 2020. 2 . 16 The evidence of the 6 th Appellant was that on 24 th June 202£ the 1st Appellant went to his house with the deceased who We looking for groundnuts to buy. The duo left as he did not ha\ any groundnuts . He mentioned that the cash that wa recovered from his house came from the sale of maize. H denied having killed or stolen from the deceased as he had swollen leg. 3.0 FINDINGS OF THE TRIAL COURT 3.1 The trial Judge found that the doctrine of recent possessio applied in relation to the deceased's property which wa recovered from the homes of some of the Appellants. 3.2 She also found that the odd coincidences (such the fact that th deceased was last seen with the 1st Appellant who led the polic to the other Appellants from whom some of his property wa recovered; the 2 n d Appellant led the police to the site where th deceased's remains were found) pointed to the Appellants' guil1 4.0 GROUNDS OF APPEAL AND ARGUMENTS 4.1 Dissatisfied with the decision of the trial court, the Appellant lodged this appeal advancing the following grounds: 1. The trial Court misdirected itself in law and in fac when it convicted the Appellants on circumstanti~ evidence when the inference of guilt was not the onl reasonable inference that could be drawn from th case at hand. 2. The trial Court misdirected itself in law and in fac when it convicted the Appellants that they acted i: concert or with a common design to rob and murde the deceased. 4.2 In the arguments in support of the appeal, it was submitted (i: relation to the first ground) that the trial judge relied on od1 coincidences to connect the Appellants to the offences. It wa argued that there was no conclusive evidence that th deceased 's property was recovered from the Appellants' home as there was no independent evidence to that effect. It was als, argued that nothing was recovered from the 1s t Appellant. 4.3 The Appellants also criticized the Prosecution's failure to obtai1 telecommunication records from the mobile service providers t, clarify whether the deceased had travelled to Chipata afte receiving a phone call. Our attention was drawn to the case , Peter Yotum Haamenda v the People 1 on dereliction of duty 4.4 A further argument by the Appellants was that there was r evidence that the mattress and roofing sheets which we1 recovered from the 1st Appellant were purchased from tr money stolen from the money stolen from the deceased as tr 1st Appellant was a business man. 4.5 Regarding the evidence on the discovery of the deceased's bod: the Appellants denied that there was any evidence that the 2 1 Appellant led the police to the body. It was argued that polic failed to produce a picture showing the Appellants leading the1 to the scene . 4.6 On the basis of the foregoing, the Appellants contended that th circumstantial evidence adduced by prosecution could lead t other reasonable inference. The Appellants referred us to th case of Mbinga Nyambe v The People2 • 4. 7 It was also argued that the Appellants gave reasonab] explanations or rebuttals to the prosecution evidence which th trial court ignored. 4.8 In relation to ground 2, the Appellants submitted that there we no evidence that they had a common purpose to rob and murd( the deceased and it was therefore erroneous for the trial cou: to make such a finding. It was argued that the finding was base on the questionable assumption that the Appellants shared tr deceased's property. We were urged to allow the appeal and sc aside the convictions. 5.0 RESPONDENT'S ARGUMENTS 5.1 The Respondent filed skeleton arguments in which th<: addressed the two grounds of appeal together. It was submitte that the evidence adduced before the trial Court when vi ewe as a whole connected all the Appellants to commission of th offence. It was contended that the evidence had attained degree of cogency that permitted only an inference of guilt. W were referred to the cases of David Zulu v The People 3 an Saidi Banda v The People4 in support of the argument. 5.2 The Respondent countered the Appellants' argument that ther were no independent witnesses to support the evidence the items were recovered from their homes by stating that facts wer established which when combined ~,ith other facts pointed 1 the appellants' guilt. It was submitted that the facts did nc have to be proved beyond reasonable doubt. The Respondent position was the fact that the deceased's items were found i the Appellants' homes who had interacted with him and led 1 the recovery of his body pointed to the Appellant's guilt and tb trial court was entitled to draw conclusions from the facts. 5.3 Regarding the argument that the trial judge grouped tb Appellants' explanations, the Respondent referred to tb acquittal of Lloyd Phiri as proof that the Appellants' were dea with individually in the court below. 5.4 On the assertion that the lower court misapplied the facts wit regard to the finding that he led the police to the apprehensio of his co accused, the Respondent submitted that the finding were not perverse. We were referred to the cases of N dango ' Moses Mulyango and Another5 where Appellate courts wer cautioned not to interfere with findings of fact by the trial Cour We were urged not to interfere with the trial court's findings. 5.5 The Respondent submitted that there were a number of oc coincidences which when viewed as a whole constitut( evidence as held in the case of Machipisa Kombe v Ti People 6 • 5.6 A further argument by the prosecution was that the eviden< showed that the Appellants acted with a common purpose c: provided by section 22 of the Penal Code. We were ref erred · the case of Macklin Murphy and others (1838) 2 Lewin 225 c the definition of common purpose. Reference was also made ' the case of Mutambo and 5 others v The People (1965) Z 15. We were urged to uphold the convictions. 6.0 CONSIDERATION AND DECISION 6. 1 We have carefully considered the record of appeal together t1 arguments by both sides. We note that the Prosecution's ca~ in the lower court rested entirely on circumstantial evideno The issue we need to determine is whether there was sufficie1 circumstantial evidence which only allowed an inference that was the Appellants who had jointly and whilst acting togeth( murdered and robbed the deceased. 6.2 The evidence that the deceased met with the 1s t Appellant c Thenje village on 24 th June 2020 was not disputed. Durin cross examination, it was confirmed that the 1s t Appellant ha escorted the deceased to the other Appellants to bu groundnuts. The 1s t Appellant admitted in his defence that b took the deceased to his co Appellants. 6.3 He also confirmed that the deceased did not buy any groundnu1 because they were not available. His story that the decease went back to Chipata to collect money could not be true as th evidence of the prosecution was that he collected the money o 20 th June 2020 before going to Thenje Village . Further, hi evidence suggested that the deceased was ready to buy th groundnuts but none of his co Appellants had any. Althoug none of the deceased 's property was recovered from him, th police found the deceased's possessions with most of the peop] he had led them to. 6 .3 The evidence that the body of the deceased was only discovere after the Appellants had been apprehended was not disputec This lends credence to the Prosecution's evidence it was the 2r 1 , 1 body was discovered hidden in the mountain a great distanc away from the village. In our view, the Police could not hav discovered the deceased 's body without help from the killers. 6.4 Regarding the third Appellant, there was evidence that th deceased 's black bomber jacket was recovered from his hous<: He did not offer any explanation as to how the jacket found itse: in his house. The only logical inference in the absence of aJ explanation is that he stole it from the deceased. 6.5 There was evidence that 7 empty 90kg bags were recovered fron the 4 th Appellant's house. The sacks bore the label from thi deceased 's employer. The deceased had been in possession o similar bags before his demise. The 4 th Appellant failed tc proffer any explanation on how he obtained them. 6 . 6 According to PW8 , a back laptop bag belonging to the deceasec together with a motor bike used to transport the deceased wen recovered from the 5 th Appellant's home. The 5 th Appellan denied that the laptop was recovered from his house. He alsc denied having met the deceased on 24 th June 2020 as he was ir Mozambique . He admitted that he had not informed the police tha he had been in Mozambique. This evidence contradicted the 1 Appellant's testimony that he took the deceased to his house. 6.7 We also note that the evidence of having been in Mozambiqu was raised for the first time during the defence case and can t regarded as an afterthought. We refer to the case of Donal Fumbelo v the People SCZ Appeal No. 476 of 2013 in whic it was held that: "In the case of a witness who is an accused person, ; is indeed very important that he must cross exami11 witnesses whose testimony contradicts his version o a particular issue. When an accused person raises h1 own version for the first time only during his def enc• it raises a strong presumption that his version is a afterthought, and therefore, less weight will b attached to such a version. Therefore in a contest c credibility against other witnesses, the accused 1 likely to be disbelieved." 6. 8 The red and yellow scale which was in the deceased possession was recovered from the 6 th Appellant's house and r. failed to explain how it got there. 6. 9 In our view on the facts established by the evidence, the tri, court cannot be faulted for having arrived at the conclusion th~ the Appellants killed the deceased. The case of Saidi Banda The People (supra) is instructive on findings based o circumstantial evidence. In that case the Supreme Court he] as follows: "Where the prosecution's case depends wholly or i part on circumstantial evidence, the court is in effec being called upon to reason in a staged approach. Th court must first find that the prosecution evidenc has established certain basic facts. Those facts d not have to be proved beyond reasonable doubt. Take by themselves, those facts cannot, therefore, proi the guilt of the accused person. The court should the infer or conclude from a combination of tho5 established facts that a further fact or facts exis· facts implicate the accused in a manner that poin; to nothing else but his guilt. Drawing conclusio, from one set of established facts to find another fai or facts proved, clearly involves a logical and rationc process of reasoning. It is not a matter casting a11 onus on the accused, but a conclusion of guilt 1 entitled to draw from the weight of circumstanti< evidence adduced before it." 6. 10 The trial judge accepted the evidence that the deceased wa seen in the company of the Appellants before he was killed, th 1st Appellant led to the apprehension of his co Appellants fror whom items that had been in the deceased 's possession wer recovered , the Appellants led to the recovery of the deceased: body about 10 kilometres away from the village and th Appellants had no reasonable explanation for how they came t be in possession of the items. In our view, the court below wa entitled, on the basis of the above facts , to conclude that th pointed to the fact that the Appellants murdered the deceased 6 . 11 The Appellants have argued that there was dereliction of dut telecommunication information to show that deceased wa speaking to someone in Chipata where he went or lift fing<: prints from the hammer. We do not accept that the failure t investigate these issues prejudiced the Appellants in any way i view of the other evidence. 7 .0 CONCLUSION 7.1 In view of the foregoing, we find no merit in the appeal an uphold the convictions for all the Appellants. The appeal i dismissed. DEP COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDGE