Justin Banda v The People (APPEAL 61/2024) [2025] ZMCA 110 (15 August 2025)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) APPEAL 61 / 2024 BETWEEN: JUSTIN BANDA AND THE PEOPLE \ 5 AUG ?025 APPELLANT RESPONDENT CORAM: MCHENGA DJP, NGULUBE AND CHEMBE JJA On 20th May 2025 and 15th August 2025 For the Appellant Mrs. M. K. Mulubwa- Legal Aid Counsel, For the Respondent Mr. V. Choongo - State Advocate, National Prosecution Authority Legal Aid Board JUDGMENT Chembe, JA, delivered the Judgment of the Court. Cases referred to: 1. Nyambe v The People SCZ Judgment 5 of 2011 2. Mwansa Mushala and Others v The People ( 1978) ZR 58 3. Yoani Manongo v The People ( 1981) ZR 152 SC 4. Chabala v The People ( 1976) ZR 5. Paul Watson Katembele v The People ( 1977) ZR 90 6. Alozio Phiri v The People CAZ Appeal No 143,144/2021 J2 7. Davies Mwape v The People (1979) ZR 54 8. Bernard Mwanza and Another v The People CAZ Appeal No. 77 a and b of 2000 9. Chate v The People ( 1975) ZR 233 10. Chimbini v The People (1973) ZR 191 II. Sammy Kambilima Ngati and Others v The People SCZ Judgment No. 14 of 2003 12. Nyambe v The People (1973) ZR 228 (CA) 13. Saluwema v The People (1965) ZR 1.0. INTRODUCTION 1.1 This is an appeal against the judgment of Chawatama J. dated 15th September 2021 in which the Appellant was convicted of one count of murder. 1.2 The particulars of the offence alleged that on 11 th November 2018 , the Appellant murdered Abel Phiri. 2.0 CASE BEFORE THE TRIAL COURT 2.1 The prosecution called nine witnesses in support of its case. The prosecution evidence revealed that on 18th September 2018 PWl, Ephraim Ngandwe , was at Dela One bar in Ngombe Township with the deceased. Whilst they were imbibing, the Appellant entered the bar with a friend called Ronwell. 2.2 The Appellant proceeded to the bar counter whilst his colleague sat next to the deceased who was drunk and dozing. Ronwell J3 was seen by PWl picking the deceased's pockets and stealing a phone and cash. PWl confronted Ronwell and the commotion woke the deceased from his slumber. He pursued Ronwell who fled the bar. 2.3 PWl and the deceased decided to take the Appellant to the police station so that he could reveal the whereabouts of Ronwell. Before they left the bar, Ronwell reappeared with another person armed with stones. They started stoning PWl and the deceased in a bid to secure the release of the Appellant. PWl and the deceased ran out of the bar with the Appellant and his colleagues in pursuit. The assailants continued throwing stones at them. 2.4 As they fled, PWl and the deceased ran in different directions. PW 1 ran home and later learned that the deceased had collapsed after being beaten. The deceased later died. 2 .5 PW2 , who lived 10 meters away from Dela One bar, observed the whole fracas as it unfolded. She saw the Appellant and his two colleagues chasing PWl and the deceased. The Appellant and his colleagues caught up with the deceased and started J4 beating him with stones and fists. She saw them lift the deceased and throw him to the ground. Her attempts to stop th em failed. She later saw the Appellant stepping on the deceased's head whilst he was lying on the ground. She was later able to identify the Appellant on the identification parade. 2 .6 A postmortem examination was conducted on the deceased's body which revealed the cause of death to be subdural hemorrhage due to blunt force head injury. 2 .6 The Appellant was later apprehended in 2020 by PW4, a neigbourhood watch officer. He was arrested and charged with the subject offence. 2.7 In his defence, the Appellant told the Court that on 18th September 2018, he was at Dela One bar. As he was drinking beer, he observed his colleague struggling with the deceased over money. His friend left the bar. The deceased and his friend th en apprehended him with the intention of taking him to the police station. He saw Emmanuel (also referred to as Ronwell) and other guys throwing stones at the deceased in protest at his apprehension. PWl and the deceased released him and started JS running away. Emmanuel and the other guys pursued them whilst throwing stones at them. 2.8 He remained in the bar and later went home to change his Tee shirt which had been torn in the scuffle. He denied having chased the deceased and PW 1. He later learnt th at the deceased had been killed. He explained that PW2 gave false testimony against him because she hated him as she blamed him for influencing her son to m isbehave. He denied that he had gone into hiding until he was apprehended in 2020. He denied having murdered the deceased. 3.0 FINDINGS BY THE TRIAL COURT 3. 1 After analyzing the evidence, the trial Court found that the prosecution evidence was anchored on the eye witness testimony of PWl and PW2 . Relying on a number of authorities, she found that there was sufficient evidence that placed the Appellant at the scene of crime and that the issue of mistaken identity did not arise. The Appellant p laced himself at the scene. The trial Court found that PW2 was a reliable witness who gave her evidence in a forthright manner. The Appellant's J6 assertion that she had a motive for falsely implicating h im was disregarded. 3.2 The Court also found that the Appellant had acted in common purpose with his colleagues in assaulting the deceased. The trial Court was satisfied that the prosecution evidence had established that the Appellant acted with malice aforethought. 3 .3 The Appellant was convicted as charged and sentenced to death. 4.0 THE APPEAL 4.1 Aggrieved with the decision of the trial court, the Appellant launched this appeal fronting the fallowing grounds: i) The learned trial Court erred in law and fact when the court found that the possibility of an honest mistake was ruled out. i i) The Learned trial Court erred in law and fact when the court found that PW2 was a truthful witness and the court had no reason to doubt her testimony thereby disregarding the explanation by the Appellant. J7 iii) In the alternative, the Learned trial Court erred in law and fact when the Court sentenced the Appellant to death, when the Appellant was a juvenile at the alleged time of commission of the offence. 5 .0 APPELLANT'S ARGUMENTS 5.1 In the arguments in support, the Appellant submitted under the 1s t ground of appeal that on the evidence presented, the possibility of honest mistake could not be ruled out as PW2's testimony was that she got to know them that day. The Appellant challenged the trial court's finding that PW2 and the Appellant knew each other well. 5 .2 The Appellant referred to the cases of Nyambe v The People 1 , Mwansa Mushala and Others v The People 2 and Yoani Manongo v The People3 in support of the argument that great care should be taken to test the identification evidence. 5.3 It was argued that PW2 did not describe the features of the Appellant or the clothes he was wearing before identifying him on the parade thereby raising the possibility of honest mistake. J8 Further it was submitted that there was no evidence that the Appellant and PW2 knew each other well prior to the incident. 5.4 In relation to the 2 nd ground of appeal, the Appellant submitted that the trial court did not consider that his explanation that he remained in the bar when the deceased and PW 1 were chased might reasonably be true. Reliance was placed on the case of Chabala v The People 4 in support of the proposition that if an accused's explanation might reasonably be true, he should not be convicted. 5.5 Regarding the 3 rd ground of appeal, it was submitted that the Appellant was 17 years old at the time of commission of the alleged offence and should therefore have been sentenced as a juvenile even though h e was 20 years old at the trial. Our attention was drawn to the case of Paul Watson Katembele v The People5 on the requirement to sentence an offender on the basis of the law as it stood at the time the offence was committed. 5.6 A further argument was that the trial court should have inquired into the Appellant's age before meting out the J9 sentence. The cases of Alozio Phiri v The People6 and Davies Mwape v The People7 were referred to in th at regard. We were urged to allow the appeal. 6.0 RESPONDENT'S ARGUMENTS 6.1 In respon se, the Respondent filed heads of argument on 20th May 2025. The Respondent supported the trial court's finding that the Appellant was properly identified. It was submitted that the evidence revealed that th e incident h appened at 14 00 hours and it took about 15 minutes. PW2 s aw the Appellant assaulting the deceased and she was able to identify him on the identification parade. Reference was made to th e cases of Bernard Mwanza and Another v The People8 , Chate v The People9 and Chimbini v The People 10 on the issue of identification. 6.2 It was submitted that it was competent to convict on single witness identification. We were referred to the case of Sammy Kambilima Ngati and Others v The People 11 in support of the above argument. The Respondent den ied that there was J10 dereliction of duty on the part of the police with regard to the conduct of the identification parade. 6 .3 With respect to the 2 nd ground of appeal, the Respondent maintained that the trial court did consider the Appellant's explanation and disbelieved it. 6.4 Regarding the 3 rd ground of appeal, the Respondent conceded th at the trial court erred when it sentenced the Appellant to death despite the fact that when the offence occurred h e was a juvenile. Reference was made to section 25 (2) of the Penal Code which prohibits the passing of a sentence of death on a person under the age of eighteen years. We were urged to order that the Appellant be p laced on probation pursuant to Order 73 (1) (i) (j) of the repealed Juveniles Act. 7 .0 HEARING 7 .1 At the hearing, both sides relied on their written arguments. 8.0 CONSIDERATION AND DECISION 8.1 We have carefully considered the record of appeal together with the judgment impugned and the arguments by both sides. The main issue raised by the Appellant is that the identification Jll • evidence was not sufficient. The identification evidence came from PW2 who testified that she observed the assault from her home and even tried to stop the assailants from assaulting the deceased. 8.2 The trial court ruled out the possibility of honest mistake after evaluating the circumstances under which the observation took place. The trial judge found PW2 to be a credible witness. 8.3 The record of appeal shows that the evidence that PW2 observed the incident for about 15 minutes in broad daylight was not disputed. PW2's testimony was that she witnessed the Appellant beating the deceased and stepping on his head. She was able to pick out the Appellant from an identification parade. Her identification evidence was not shaken during cross examination. Further, the Appellant placed himself at the scene when he admitted that his colleagues threw stones at the deceased in order to secure his release. 8.4 The Appellant argues that the period of observation was too short to allow proper identification and that the stress of the moment may have led to honest mistake. However, our view is • that 15 minutes is sufficient ti1ne for a bystander to make a J12 positive identification. Further, although the situation was stressful, we note that the violence was not directed at PW2 and she was therefore able to make a clear identification. 8.5 Whilst as held in the case of Nyambe v The People 12 , the greatest of care should be taken to test the identification in order to rule out the possibility of honest mistake, the circumstances of this case did not require a stringent test. The Appellant does not deny being at the scene and having an altercation with the deceased. His evidence was that that PW2 knew him before the incident. Although PW2 denied this, the trial court accepted his evidence. There was the ref ore an element of recognition. 8.6 The Appellant also makes a half- hearted submission that the identification parade was not properly conducted as the Appellant was the slimmest person on the line. We have looked at the photographs of the identification parade. In our view, the Appellant's stature does not stand out from the other members of the parade. J13 • 8.7 Further, in the case of Chimbini v The People (supra) the accused was convicted on the basis of the evidence of a single identifying witness. 8.8 In view of the foregoing, the trial judge was entitled to accept the identification evidence of PW2. The 1st ground of appeal therefore fails . 8. 9 In the 2 nd ground of appeal, the Appellant charges that the trial judge did not consider his explanation. The trial judge in her reasoning accepted the version of events given by PW2 and did not articulate the basis for rejecting the Appellant's explanation. In the case of Saluwema v The People 13 the Supreme Court held that: "If the accused's case is reasonably possible even though not probable, then a reasonable doubt exists and the prosecution cannot be said to have discharged its burden of proof." 8.10 However, perusal of the record shows that the trial judge did consider the Appellant's explanation at pages J 13 to J 14 of the judgment. In our view, the evidence against the Appellant was • • J14 so overwhelming that his explanation could not reasonably be true. 8.10 The entire assault occurred because the Appellant was apprehended by PWl and the deceased. His colleagues came to rescue him. Further the Appellant admitted under cross examination that he was angry that the deceased and PW 1 had manhandled him and attempted to report him to the police. This made it probable that he would retaliate by assaulting the deceased and PW 1. 8.11 In these circumstances, it is highly unlikely that he could have simply walked away. It is illogical that his colleagues could have continued to pursue the deceased when the person they went to rescue walked away. 8.12 The learned trial judge found that the Appellant acted in concert with his colleagues in assaulting the deceased. The foregoing facts support this finding. We cannot fault the trial court for rejecting the Appellant's explanation. The 2 nd ground of appeal accordingly fails. • JlS 8.13 With respect to the 3 rd ground of appeal, the Respondent concedes that the trial court erred by sentencing the Appellant to death when he was a juvenile at the time of commission of the offence. We note at page 81 of the record of appeal, the issue of the Appellant's age came up. The Court directed that the issue would be dealt with at sentencing. However, the issue of age at commission of the offence was not raised at the sentencing hearing and the Court proceeded to sentence him to death. 8.14 The Record shows that the Appellant was 20 years when he was first arraigned in 2021. The offence was committed in November 2018 almost 3 years earlier. This clearly meant that he was a juvenile at the time of commission of the offence. The sentence was therefore a grave misdirection on the part of the trial court in view of Section 25 of the Penal Code which proscribes the meting out of a death sentence on a juvenile. The 3 rd ground of appeal succeeds. 8 .15 The Appellant submits that the appropriate sentence that should be imposed is a probation order pursuant to the Probation of offenders Act. However, Section 25 (2) of the Penal • J16 Code does provide a penalty for juveniles convicted of murder. It provides as follows: "Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that, at the time when the offence was committed, he was under the age of eighteen years; but in lieu thereof the court shall sentence him to be detained during the President's pleasure; and when so sentenced he shall be liable to be detained in such place and under such conditions as the President may direct." (Our emphasis) 8.16 The Penal Code prescribes a mandatory sentence for murder in section 25 which can only be disregarded if there are extenuating circumstances. In the present case, the trial court did not find any extenuating circumstances to warrant departure from the mandatory s entence. We equally find none. 9 .0 CONCLUSION 9 .1 Having found that the trial court was on firm ground when it convicted the Appellant, we uphold the conviction. We are • J17 however compelled to interfere with the sentence in view of the fact that the Appellant was a juvenile at the time of commission of the offence. And the law as it stood then provided for a mandatory sentence. We accordingly set aside the sentence of death and order that the Appellant be detained at the President's pleasure. DEPUTY JUDGE PRESIDENT P. C. M. NGULUBE COURT OF APPEAL JUDGE Y. CHEMBE COURT OF APPEAL JUDG