Kenny Manyenga and Anor v the People (APP. No. 3 & 4/2022; APP. No. 3 & 4/2022) [2022] ZMCA 176 (16 November 2022)

-J.1- • i IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) APP. No. 3 & 4/2022 BETWEEN: KENNY MANYENGA EVANS CHANGATA AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT RESPONDENT CORAM : Mchenga DJP, Chishimba and Muzenga JJAs On 20th September, 2022 and 16th November, 2021 For the Appellant : Ms. M. Nzala, Legal Aid Counsel Messrs Legal Aid Board. For the Respondent : Ms. I. T. Munga, Chief State Advocate and N. T Mumba, Mr. S. Mainza, State Advocate National Prosecution Authority. JUDGMENT Chishimba JA, delivered the Judgement of the Court. CAS)AUTHORITIES CITED: 1. Chimbini v The People ( 1973) ZR 191 2. Muvuma Kambanja Situna v The People (1982) ZR 115 3. Chimbo & Others v The People (1982) ZR 20 4. Kalonga v The People (1976) ZR 124 5. Nyambe Mukena v The People SCZ Appeal No.128 of 2009 6. Machipisa Kombe v The People (2009) ZR 282 ) -J.2- 7. Evaristo Bwalya v The People CAZ Appeal No. 174 of 2017 8. Champion Manex Mukwakwa V The People (1978) Z. R. 347 9. Ilunga Kabala & John Masefu (1981) ZR 102 10. George Nswana v The People (1988 - 1989) Z. R. 174 11. Sammy Kambilma Ngati, Mumba Chishimba Edward and Davy Musonda Chanda v The People SCZ Judgment No. 14 of 2003 12. Muvuma Kambanje Situna v The People 1982 ZR 115 LEGISLATION CITED: 1. The Penal Code Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The appellants were charged with one count of aggravated robbery contrary to section 294(2) of the Penal Code Chapter 87 of the Laws of Zambia. The particulars alleged that Kenny Manyenga and Evans Changata, on 1st December, 2019, at Kaoma in the Kaoma District of the Western Province of the Republic of Zambia, jointly and whilst armed with a firearm namely, Shotgun Greener Serial No. 33901, did steal 4 packets of assorted bricks of cigarettes valued at K3, 300.00 the property of Kayuku Luneta, and at or immediately before or after the time of such stealing, did use or threatened to use actual violence to the said Kayuku Luneta in order to obtain or retain or prevent the said property from being stolen or retained. 1.2 The appellants were convicted of the offence and sentenced to death. -J.3- 2.0 EVIDENCE IN THE COURT BELOW 2.1 The evidence adduced in the High Court was as follows, PWl, • Kayuku Luneta, a security guard at One Mega Save Shop in Kaoma, testified that on 1st December, 2019 he reported for work. Around 04:00 hours, whilst seated at the back of a Canter motor vehicle a man wearing a black jacket and armed with a gun, ordered him to lie down. PWl could not identify the man who stood in a dark place. 2.2 After complying with the order to lie down, the armed man went towards the shop. Thereafter, PWl jumped from the truck and saw another man wearing a white shirt armed with a metal bar on the veranda of the shop. He could clearly see this man on account of the security lights on the veranda. The said man smashed the window of the shop and got some bricks of cigarettes which he put in a sack. 2.3 The man armed with the gun fired a shot in the air to scare Luneta while daring him to go close. Upon the men fleeing the scene, a fellow security guard, by the name of Siyanga rushed to the Zam beef Shop and contacted the police. 2.4 On 2 nd December, 2019 a suspect was brought to the shop whom he identified by his physical appearance and complexion -J.4- • • as the one who welded the metal bar, Al. He also identified the metal bar that was used in the attack. As regards the assailant armed with the gun, PWl said all he saw was a figure in the dark. 2.5 PW2, a ballistics expert, tested the firearm and confirmed that it is a firearm capable of loading and discharging. Further, that it is the same firearm that discharged the cartridges recovered from the scene. 2.6 PW4, Detective Inspector Maingo Namasiku apprehended Al after receiving a tip from the public that there was a man dishing out cigarettes in Mungongo Compound. He recovered a brick of cigarettes and a steel bar from A 1. A 1 later led him to the crime scene and to a place where he recovered an empty cartridge for a shotgun. 2. 7 Al also led PW4 to the home where A2 lived and was apprehended on 3 rd January, 2020. PW4 recovered the shot gun used in the attack together with 2 live rounds of ammunition, a steel bar and a cutter. 2.8 Al denied committing the offence stating he was at home on 1st December, 2019 and was apprehended on 2 nd December. Some items were recovered from his house including bullets and game -J.5- • • meat belonging to his brother-in-law. The police also recovered four packets of Life Cigarettes from his makeshift store . Thereafter Al, was taken to the shop where he was shown to PWl and the owner of the shop. Al testified that he was in prison at the time of the alleged aggravated robbery. 2. 9 A2 testified before the court that he was involved 1n a road accident sometime in October 2019 and sustained a fractured leg. He was subsequently taken to the University Teaching Hospital where he remained until he was discharged on 2 nd December, 2019 as per the discharge slip-D2 produced in court. On 2 nd January, 2020, he was apprehended while at a timber camp in Lukulu. A search was also conducted which resulted in the recovery of his shotgun. A2 was also charged and convicted of being in possession of a firearm without a licence. 2.10 DW3, a correctional services officer produced a record from the prison in respect of Al showing that he was admitted to the prison on 10th December, 2019 to serve a sentence of 12 months for breaking into a building and committing a felony therein. He was released on 5 th August, 2020. He was again admitted for the offence of stock theft on 22nd February, 2021 for a sentence -J.6- of five years effective 18th February, 2020. The sentence will • expire on 18th February, 2024 . 2.11 In cross-examination, DW3 conceded that the date stamp on D4 (the docket for breaking and committing a felony therein) had been altered together with the offence of aggravated robbery and the sentence. 3.0 DECISION OF THE COURT BEWW 3.1 In her judgment, the learned trial judge found that Al had been positively identified by PW 1 as he saw him on the veranda of the shop where there were two light bulbs. Further, that PW 1 had sufficient opportunity in which to identify Al as the ordeal lasted about half an hour. 3.2 With respect to A2, the trial court noted that PWl only saw A2 in the moonlight and for that reason, there was need for further evidence to satisfy the court that it could safely rely on PWl 's identification evidence. 3.3 The court considered the testimony of PW4, that he recovered some cigarettes from Al following a tip off. Under the doctrine of recent possession, the court below found that the cigarettes were part of those stolen a day before from the shop in the -J.7- morning of the robbery. Further, two cartridges were recovered from the home of A 1. 3.4 The court also found that it was too much of a coincidence that Al led PW4 to A2. It was at A2's home that a Shotgun Greener was recovered which, upon ballistic analysis conducted by PW2, was found to have discharged the empty cartridge that was recovered at the crime scene by PW 4. 3.5 The trial court rejected the defence by the appellant, (Al) that he was in prison at the time of the alleged offence having found that the Zawa Seizure Notice and prisoners' record form documents produced in court had been altered. As regards A2, his defence that he was .in hospital at the time of the robbery was equally rejected. This was on the basis that the bearer's name appeared erased on the document and replaced with A2's name, as well as being written with a different handwriting and shade of ink from the rest of the document. The court refused to rely on all the documents because the explanations for the alterations are unsatisfactory. The court found the old coincidences sufficiently liked Al and A2 to the offence and convicted them. -J.8- 4.0 GROUNDS OF APPEAL 4.1 Three grounds of appeal have been advanced couched as follows: 1) The learned trial court erred and misdirected itself both in law and/act when it convicted the appellant based on the evidence of identification from PW1 when the said evidence was unreliable; 2) The learned trial court e"ed and misdirected itself both in law and fact in rejecting the explanations given by the 1st appellant in his defence as to how he came in possession of the cigar·ettes when the said explanations were plausible; and 3) The lear1ied trial court e"ed and misdirected itself in law and fact when it convicted the appellant on the basis of suspect evidence which was not sufficiently corroborated. 5. 0 APPELLANT'S ARGUMENTS 5.1 Ground one attacks the evidence of the single identifying witness, PW 1 as being unreliable. This is because the circumstances under-which PWl observed the attackers were not favourable to place reliance on the said identification. PWl had never seen the appellants before the incident. Further that the said observation was made under a stressful environment. 5.2 In support of this argument, we were referred to the case of Chimbini v The People 111 that in cases of identification by a -J.9- • single witness, the court must be satisfied that the witness is reliable in his observation. 5.3 It was argued that the circumstances under which PWl identified the assailants were not be reliable thereby making it impossible to rule out the possibility of honest mistake. The case of Muvuma Kambanja Situna v The People <21 was cited for the principle that if the opportunity for a positive and reliable identification is poor, then the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence. 5.4 Citing the case of Chimbo & Others v The People <31 , it was further argued that the trial court did not warn itself of the need to exclude the possibility.of an honest mistake. It also submitted that the identification by PWl was unreliable as there was no identification parade conducted, when one ought to have been done. 5. 5 In ground two, it was contended that the trial court was wrong to reject the explanation tendered by Al in his defence regarding how he came into possession of the cigarettes when the explanation was plausible. This is because the findings of the trial court are not supported by any facts from the evidence. In -J.10- • particular, no evidence was led to confirm that the cigarettes were recovered from Al's house the next morning ofr the aggravated robbery. There was no evidence adduced that PW3 and PW4 had identified the said cigarettes in court and at the police as belonging to PW3. 5.6 The fact that the cigarettes were given to another complainant in a different matter raises doubt as to whether the recovered cigarettes were the ones stolen from PW3 's shop in view of the explanation given by Al that they belonged to him. In the absence of proof that the cigarettes belong to PW3 and the explanation given by Al being plausible or reasonable, Al ought to be acquitted. The case of Kalonga v The People < 41 was cited as authority. 5. 7 Lastly, in ground three, the appellants contend that the trial court relied on the suspect evidence of PW4 to convict the appellants. PW4 and A2 had a history, having previously met in a case in which A2 was a complainant regarding the seized property that PW4 had not returned to him. On that basis, PW4 ought to have been treated as a suspect witness with a motive to give false evidence against A2. -J.11- • 5.8 It was further contended that PW4 is a suspect witness because he only formally charged and arrested A2 in September 2020 after complaints were made against him and yet he was apprehended on 3 rd January 2020. No explanation was given for the delay in arresting A2. A2 was initially charged with unlawful possession of a firearm instead of aggravated robbery from the onset. This shows that PW4 had a motive which required evidence of something more in order to convict the appellants. The evidence of PW4 being led by Al to a place where he recovered the empty cartridge was also not supported by any of the witnesses. 5.9 In support of these arguments, we were referred to the case of Nyambe Mukena v The People 151 on the need to exclude the danger of false implication, and Machipisa Kombe v The People 161 on odd coincidences constituting evidence of something more. 5.10 It was submitted that the firearm, PS was not identified by PWl as being the firearm used in the robbery. We were urged to allow the appeal, quash the conviction, set aside the sentence and set the appellants at liberty. -J.12- • 6.0 ARGUMENTS BY THE RESPONDENT 6.1 Heads of argument dated 20th September were filed on behalf of the respondent with leave of court. It was submitted that evidence of identification rested on the single identifying witness, PWl. This witness saw Al breaking the window of the shop with an iron bar while A2 had a gun. A2 had earlier ordered PWl to lie down at the back of a Canter light truck from where he saw the appellants break into and steal from Mega Save Store. The shop was broken into by the veranda where there was light from electric bulbs which enabled PWl to see clearly. 6.2 With respect to A2, he was identified by PWl because he is the one who ordered him to lie down. PWl was able to identify him on account of the moonlight. He also described him as being dark, a bit short and a bit stout, and that he was wearing a black jacket. In this regard, it was submitted that the possibility of an honest mistake had been ruled out. In support of these submissions, we were referred to the cases of Chimbini < > and our decision in Evaristo Bwalya v The People < 7>. 6.3 In opposing ground two, it was submitted that the recovery of the brick of cigarettes from Al on the morning of the robbery is -J.13- one of the links connecting him to the robbery. There was information that Al was seen distributing the cigarettes to people who later informed the police. That Al did not dispute the recovery though he argued that the cigarettes belong to him. 6.4 The cigarettes recovered were similar to those stolen from Mega Save Store a few hours earlier. This, it was submitted, brings the case into the ambit of the doctrine of recent possession, in particular, of similar articles. The case of Champion Manex Mukwakwa v The People 181 was cited where it was held that: (ii) However commonplace each of the articles individually might be, it was remote in the extreme that there would be two separate groups of five similar articles, and the probabilities were therefore overwhelming that the articles found in the possession of the appellant and the man to whom he led the police were the articles taken from the third complainant. (iii) If the identifications of the appellant by the second and fourth complainants were mistaken the possession of these various articles by the appellant and the other man, which at the very least were very similar to the articles taken from the third complainant, would be truly remarkable and beyond the limits of acceptable coincidence. 6.5 The cigarettes that were recovered from the Al's home who had no evidence of owning a shop selling cigarettes before, were similar articles to the ones stolen from Mega Save Store. In any -J.14- case, Al was in recent possession having been found with the • cigarettes the very next day after the robbery . 6.6 Further, it was submitted that the recovery of the empty cartridge from the point where Al claimed to have stopped over after the robbery, connects him to the robbery. This is because Al led PW4 to the place. Further, Al led PW4 to A2 where the Greener Shotgun used in the robbery was recovered together with two rounds of ammunition. This shows that Al and A2 knew each other. These odd coincidence shows that the two appellants are linked to the offence. In support of this, we were referred to the case of Ilunga Kabala & John Masefu 191 that odd coincidences, if an explained, may be supporting evidence. 6. 7 Lastly, in ground three, it was contended that in addition to the evidence discussed in ground two, the evidence adduced by PW4 is not suspect evidence because it was gathered in the course of investigations. That it is a known fact that normally, arresting officers end up not being in good terms with accused persons they have either arrested or investigated previously. 6.8 The argument that the trial court convicted the appellants on suspect evidence does not hold water because there was direct evidence from PWl who actually witnessed the robbery; the -J.15- • recovery of the stolen cigarettes from the appellants together with the gun and ammunition used in the robbery were sufficient evidence upon which the court could convict the appellants. We were urged to dismiss the appeal and uphold the convictions of the appellants. 7.0 DECISION OF THE COURT 7 .1 We have considered the appeal, the evidence adduced on record, the authorities cited and the arguments advanced by learned counsel for both parties. We shall deal with ground one and two together. Ground three shall be addressed separately. 7.2 The appellants were convicted of aggravated robbery under section 294(2). The evidence of being armed with a firearm is undisputed. Further the recovered shotgun was examined by ballistic experts who confirmed that the cartilages found at the scene matched those of the shotgun recovered from A2. 7.3 Grounds one and two contend that the identification evidence of PWl was unreliable and should not have been relied upon by the trial court and that the explanation tendered by A 1 regarding his being found in possession of cigarettes, was plausible. -J.16- 7.4 The overall issues for determination is whether the prosecution • established its case against the appellants to the standard required in criminal proceedings i.e beyond reasonable doubt. Ground one challenges the evidence of identification by the single identifying witness. The issues for determination in ground one and two are as follows: (i) Whether the evidence of identification by PWl in respect of Al was reliable and sufficient to warrant conviction. (ii) Whether the explanation advanced by Al in respect of possession of the cigarettes was plausible or wrongly discounted by the court below. 7.5 It is settle law that it is competent for a court to convict on the evidence of a single identifying witness provided the possibility of an honest mistaken identity is eliminated. See the case of Sammy Kambilma Ngati, Mumba Chishimba Edward and Davy Musonda Chanda v The People 111 > unreported. 7.6 Further the single identifying witness must have had the opportunity to positively and reliably identify the suspect, in order for the possibility for an honest mistaken identity to be ruled out. -J.17- 7.7 Conversely where the opportunity for identification is poor or • unreliable, the possibility of an honest mistake cannot be said to be ruled out, unless there is some other connecting link between the suspects and the offence which would render mistaken identification 'too much of a coincidence.' See the case ofMuvuma Kambanje Situna_v The People 112>. 7.8 Further the court must be satisfied that the witness is reliable in his observation taking into account factors such as time of incident i.e the day time or night time, the state of the light, the opportunity and the circumstances under which the observation by the identifying single witness was made. 7.9 A consideration of the evidence of PWl the single identifying witness places Al at the scene. PWl testified that he was able to see Al clearly with the aid of the light bulbs placed in the veranda of the shop. Pwl observed and saw Al on the veranda, breaking into the shop, which was lit with two electric bulbs. It is not farfetched that PW 1 would have had an opportunity to observe and see Al whose features he described in the court below. 7.10 We accept that initially, PWl did not see A2 clearly under the moonlight to be able to identify him because it was dark by the -J.18- • . , Canter truck where PWl was ordered to lie down. Later on, when the appellants were by the veranda, PWl testified that he was able to see both Al and A2 to the extent of identifying them. We find that PWl had sufficient opportunity to observe the appellants as the robbery lasted for about 30 minutes. Granted that one of the assailants was armed with a firearm, which they fired to scare away PWl and even dared him to come closer, we accept that due to traumatic circumstances, there could be a possibility of an honest mistake which must be ruled out. 7 .11 The next issue to be determined is whether there was other connecting evidence linking the appellant to the alleged offence. 7.12 During the investigations, PW4 recovered an empty cartridge about 10 meters away from the shop. In addition, cigarettes were recovered from Al's home a few hours after the robbery. Al led PW4 to A2 where more cigarettes, a firearm and ammunition was recovered. 7.13 The firearm was examined and tested by PW2. It was found to be the same one that was used to discharge the empty cartridge recovered at the crime scene. These pieces of evidence link the appellants to the offence and render the possibility of honest mistaken identification too much of a coincidence. -J.19- .. : 7 .14 We are of the firm view that there was other evidence connecting the appellants to the offence, which would render a mistaken identification two much of a coincidence. 7.15 We find guidance in Muvuna Kambanja Situna v The People 121 where it was held that: "If the opportunity for a positive and reliable identification is poor then it follows that the possibility of an honest mistake has not been ruled out unless there is some other connecting link between the accused and the offence which would render mistaken identification too much of a coincidence." 7.16 Having been found with the stolen cigarettes a few hours after the aggravated robbery, the doctrine of recent possession applies and the court below went on to consider this aspect. 7.17 It is trite that when an accused person has possession of property recently stolen, the court must be satisfied that the explanation offered is reasonably true. In the case of Nswana v The People, the Supreme Court discussed the inference of quilt based on recent possession where an explanation is offered which might be reasonably true. The court stated that the inference "rests on the absence of any reasonable likelihood that the goods might have changed hands and the consequent high degree of probability that the person -J.20- • in recent possession himself obtained them and committed the offence." 7.18 The issue to be considered is whether Al's explanation is one that can be said to be reasonably possible or although not probable. 7 .19 The explanation tendered by A 1 is that the cigarettes belong to him and that he was selling cigarettes from his shop. We are of the view that the explanation offered is not one which might reasonably be true and do not hold water in view of the clear identification by PWl and the other connecting evidence earlier alluded to. We find that the explanation advanced is simply untrue and an afterthought. The only reasonable inference was one of guilt based on recent possession. We therefore cannot fault the court below in rejecting the explanation by Al. For these reasons, we find no merit in grounds one and two. 7.20 In ground three, the evidence of PW4 is attacked on the basis that he is a suspect witness in view of a complaint made by A2 • against him regarding his alleged property seized by the police . It is trite that a witness with a possible interest of his own to serve should be treated as a suspect witness. The category of such suspect witness go beyond relatives and friends. -J.21- 7.21 In this case, PW4 is contended to be a suspect witness, on the .. basis that upon A2's conviction and sentence to 2 years imprisonment for being found in possession of a firearm, PW4 and other officers raided his home. They got a car battery, the sum of K14,000, building material and boxes of tiles valued at Kl 1, 250=00. 7.22 A2 testified that he lodged a complaint to the Officer in Charge in May 2020. When summoned to prison, PW4 explained that the property was still under investigation. Therefore, A2 was charged of the offence of armed aggravated robbery because of the complaint he made against PW4. Therefore, PW4 should be treated as suspect witness. 7.23 We hold the view that the mere fact that PW4 and other Officers are alleged to have seized goods belonging to A2 pending investigation and a complaint having been lodged, does not render PW4 a suspect witness, requiring his evidence to be corroborated because of the possible motive or bias to falsely implicate A2. 7.24 In any event, upon Al leading the police to A2's home, A2 was found in possession of a shotgun and two live ammunitions. He admitted being the owner of the shotgun. Ballistic expert -J.22- analysed the shotgun and the findings reveal that the recovered cartilages at the scene match those found in the fire arm. 7.25 We reject the contention that PW4 should be treated as a suspect witness. Further, that the firearm used in the robbery was recovered from A2 after Al led the police to his home. Even if we were to accept that there could be an element of a motive to falsely implicate the 2 nd appellant by PW4, the recovery of the firearm places A2 at the crime scene and confirms the identification evidence of PWl that he saw A2 at the crime scene. Therefore, we find no merit in ground three and accordingly dismissed it. 8.0 CONCLUSION 8.1 In conclusion, we hold that the appellants were properly convicted by the court below. We accordingly dismiss the appeal and uphold the conviction and sentence imposed by the court below. • DEPUTY JUDGE PRESIDENT ........................................ F. M. Chishimba COURT OF APPEAL JUDGE K. Muzenga COURT OF APPEAL JUDGE