Loveness Nyambe and 5 Ors v The People [2019] ZMCA 360 (30 August 2019)

IN THE COURT OF APPEAL CAZ APPEAL No. 101 - 106 of 2018 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: LOVENESS NYAMBE PRISCAR NYAMBE ESTHER TEMBO PAMELA NYAMBE OSIYA CHINDALA BILLINGS NYAMBE AND THE PEOPLE I T ,cour • N 39 AL'3 20tj (cid:9) : ) / ;CP67 L1J\' 1ST APPELLANT 2ND APPELLANT 3 APPELLANT 4TH APPELLANT 5TH APPELLANT 6TH APPELLANT RESPONDENT CORAM CHISANGA JP, KONDOLO SC, MAJULA, JJA On 22nd January, 2019 and 30th August, 2019 For the Appellant : Mr. Z. Muya & Ms. Mapani, Messrs Muya & Co For the Respondent : Mrs. F. L. Shawa - Director Public Prosecutions JUDGMENT KONDOLO SC, JA delivered the Judgment of the Court CASES REFERRED TO: 1. Major Isaac Masonga v The People S. C. Z. Judgment No. 24 of 2. Gerrison Zulu v Zambia Electricity Supply Corporation Limited (2005) Z. R. 35 3. Antifellow Chingaba v The People SCZ/54/201 7 4. Patford Mwale v The People CAZ Appeal No. 8 of 2016 5. Anayawa & Sinjambi V The People SCZ/ 143 & 144/2011 (cid:9) (cid:9) J2 of 28 6. Katebe v The People (1975) Z. R. 13 7. Bwalya v The People (1975) Z. R. 125 8. Woolmington v The DPP (1935) ALL ER 1 9. Mwewa Murono v the People (1966) Z. R. 124 10. Sakala v The People (1987) Z. R. 23 11. Joe Muleya, Justin Kavwema, Francis Sikombe & Eunice Mwaala v The People CAZ Appeal No. 92-95 of 2018 12. Francis Mayaba v The People Supreme Court Judgment No 5 of 13. Haonga & Others v The People (1976) Z. R. 200 STATUTES REFERRED TO: 1. The Penal Code, Chapter 87, Laws of Zambia 2. The Constitution of Zambia, Chapter 1, the Laws of Zambia 3. The Judicial Code of Conduct Act No. 13 of 1999 4. The Evidence Act, Chapter 43, Laws of Zambia The Appellants namely, Loveness Nyambe Al, Priscar Nyambe A2, Esther Tembo A3, Pamela Nyambe A4, Osiya Chindala AS and Billings Nyambe A6 were charged with various offences as follows; 1. Count 1 - Al, A4 and AS; Assault Occasioning Actual Bodily Harm on John Mushili on 6th October, 2015 contrary to Section 248 of the Penal Code. 2. Count 2 - All 6 Appellants; Arson by setting fire to a house belonging to Elina Matolopa valued at K81,500 on 7th October, 2015 contrary to Section 328 (a) of the Penal Code Chapter 87. 3. Count 3 - All 6 Appellants; Arson by setting fire to a shop belonging to Elina Matolopa valued at K16,500 on 7th October, 2015 contrary to Section 328 (a) of the Penal Code. J3 of 28 4. Count 4 - A6; Arson by setting fire to a motor vehicle belonging to Elina Matolopa valued at K81,500 on 71h October, 2015 contrary to Section 328 (a) of the Penal Code. 5. Count 5 - A6; Malicious Damage to a Toyota Hiace minibus valued at K18,000 belonging to Elina Matopola on 7th October, 2015 contrary to Section 335 (1) (b) of the Penal Code as read with Penal Code Amendment Act Number 17 of 2007. The background to this matter is that a girl by the name of M N had been found murdered and during the course of their investigations, the police picked up one PW 1 Emmanuel Hichika for questioning. Emmanuel was the husband of PW2 Elita Matolopa, the principal complainant herein. The Appellants, who are relatives of the deceased M N , are alleged to have attacked PW2's home and family. It is alleged they damaged and burnt down her house, shop and other property and in the process stole money and assaulted one John Mushili. PW1 Emmanuel Hichika, was picked up from home by the police on suspicion of having murdered the deceased M N . The police left him in cells and rushed to PW l's after they got word that the house had been attacked by a mob. PW1's wife Elita Matopola (PW2), was told by Pesida Nakamba that family members of M N were on their way to wreak havoc at her house. PW2 who was with Juliet and Presida stayed put until the mob, mostly composed of women, arrived. She saw Al Loveness Nyambe J4of 28 ( e's mother) break window panes with a bamboo stick, A2 Prisca Nyambe (Bana Junior) in a scuffle with Juliet whilst others who included A3, A4 and A5 entered the house and started breaking things. The group then burnt down her house and everything in it by setting fire to grass they obtained from a shelter which they then used to set the house curtains alight. PW2 said she had known all 6 Appellants for at least 6 years before the incident. Under cross examination she agreed that a lot of people were involved but insisted that the 6 Appellants were amongst the group and she saw A6 get some grass and enter the house to start the fire. PW3, Daniel Sampa, was awakened by noise and when he peeped through a partially open door, he saw A4 Pamela, A5 Osiya and A6 Billings throwing stones at the widows of his parents' house and also damaging a vehicle. He was able to identify them because he had known them for a long time. He then ran away to his grandparents' house. In cross examination he stated there were a lot of people at the scene and he did not see who burnt the house or the shop. Juliet Chisanshi, PW5, recounted the confusion that reigned at PW2's house and stated that she saw Al, A21 A3, A5 and A6 amongst the mob. She saw Al break the windows of the house. Her evidence was that she didn't see who actually burnt any of the property. t J5of28 PW6 was Grace Chushi who saw Al pick up a stick and break the windows. She also identified A4, AS as the people who entered the house and started breaking property whilst A6 fought with her mother and later descended on her. He beat her up and she ran to her neighbour's house. it was her evidence that she saw A6 break the shop door and allow people to ransack the goods and that she also saw him set the car and house ablaze. PW6 stood firm under cross examination and agreed that there was a mob but she said she had only named the people she knew from before and was able to observe what each one of them did. Detective Sergeant Chrispine Kasengele explained how A3 and AS were apprehended in a car that was seen speeding away from the scene and that A6 was apprehended at Luano substation where there was also some fracas. He told the Court that the Appellants were charged with the subject offences which they all denied. The Prosecution withdrew the 1St Count of assault occasioning actual bodily harm on John Mushili and Al, A4 and AS were accordingly acquitted of that charge. The Appellants were put on their defence for the remaining charges. Al to AS all denied the charges stating that they were either at the funeral house or carrying out chores for the funeral. On the other hand, A6 explained that he had travelled from Lusaka to Chingola to attend his sister's funeral and was apprehended by the police when he alighted from the vehicle at a lay-by. J6of28 The Appellants called DW7, William Semba, who informed the Court that he was the Chairman of the Crime Prevention Unit and described himself as the "eyes of the police". He testified that he witnessed the burning of PW2's property and stated that the Appellants were part of the group that burnt the shop but he did not see them take part in burning it. He testified that the group later moved to the funeral house. DW7 alleged that he told the Police what he had observed but the arresting officer, Kasengele, stopped taking down his statement because his story was not supporting the police's version of events. Under cross examination, DW7 stated that he didn't point out the culprits to the police for fear of being killed. DW8 was Emmanuel Nyambe who testified that he had taken a sick relative to the clinic. The sum of his evidence was that he was not at the scene and he got back to the funeral home after PW2's property had already been set on fire. At the conclusion of the trial the learned trial Magistrate found as a fact that it was not in contention that PW1 and 2's property was burnt and that the car in which A3 and AS were in was intercepted by the police as it was fleeing from the scene. The trial Magistrate further found the witnesses and Appellants were well known to each other meaning that the issue of mistaken identity did not arise. The trial Magistrate rejected PW6's claim that he was apprehended at the layby as he disembarked from a vehicle on arrival from Lusaka as an afterthought as the story just didn't make sense and because the evidence that he damaged one of PW2's vehicles was not challenged. J7of28 The trial Magistrate further observed that the Appellants' own witness, PW7, confirmed that all the Appellants were at the scene and that the evidence of the Prosecution witnesses showed that the Appellants participated in damaging the property and he found that they set out with a common purpose. On that basis, all 6 Appellants were convicted on Counts 2, 3 4 and 5 and the matter referred to the High Court for Sentencing. When the matter came up for sentencing, the Defence raised a motion under Section 338 of the Criminal Procedure Code asking that the matter be reviewed and sent for re-trial. The basis of the application was that the trial Magistrate had not conducted a fair trial. The application was considered, the assertions of impartiality were rejected and a re-trail declined. The High Court proceeded to sentence all 6 Appellants to 10 years imprisonment with hard labour. Dissatisfied with the Judgement of the Magistrate, the Appellants have filed six (6) Grounds of Appeal. Both Parties filed written Heads of argument and submitted viva voce at the hearing. Grounds 1, 2 and 3 are all in relation to the allegation by the Appellants that the trial Magistrate had not been impartial and which were dismissed by the High Court. The three grounds shall be dealt with as one and were couched as follows; J8of28 1. The trial Court erred in law and in fact by referring to the appellants as guilty persons before trying them (that is way before the prosecution had even closed its case). 2. The trial Court erred in law and in fact by intimidating the convicts and their Counsel and referring to counsel as "a firm of incompetent lawyers that represented the accused person who were guilty." 3. The trial Court erred in law by not including every ruling and comments that he made that are/were material to the determination of whether or not the convicts were fairly tried on record. Learned Counsel for the Appellants made reference to the supplementary bundle of documents filed on 21st November, 2018. It contained a copy of an Affidavit in support of motion to review, two letters of complaint; one addressed to the Resident Magistrate Chingola and the other to the Judge-in-Charge at Kitwe High Court. The letters both complain that the trial Magistrate had pre-judged the matter, constantly threatened the Defence Counsel and questioned their competence. The Affidavit contained similar allegations. We have observed that most of the allegations arise from events that allegedly occurred during the trial Court but are not contained in the Record. J9 of 28 Counsel for the Appellants alleges occurences, including a ruling, were deliberately omitted by the trial Magistrate. Counsel for the Appellant made lengthy submissions both written and viva voce which we shall not recite in full, save to state that he drew the Court's attention to the provisions of Article 18 (2) (a) of the Constitution of Zambia which provides for the presumption of innocence and in that regard he also cited the case of Major Isaac Masonga v The People (1)• Learned Counsel further cited various authorities which state that the Subordinate Court is a Court of record including page 67 of the Magistrates Handbook which he cited as saying the following; "The ultimate importance of the Record is that it may be called for by the High Court for Review, or may go to the Higher Court on Appeal. It is therefore essential that the case record is kept with meticulous care in order that it may be apparent to the High Court that the Magistrate has taken all the various steps requisite to a properly conducted trial." Counsel went further and cited the Judicial Code of Conduct and the Bangalore Principles of Judicial Code of Conduct of 2002. He concluded by urging us to consider the Supreme Court's sentiments in Gerrison Zulu v Zambia Electricity Supply Corporation Limited (2) and submitted that this matter should be sent back for re-trial. The short response by the Director of Public Prosecutions ("DPP") was that the letters referred to in the Supplementary Bundle were merely letters of complaint and it was shocking that the DPP was not copied the said letters as a party to the proceedings. She stated that none of the allegations could be substantiated during this hearing and opined that the defence must find another avenue to pursue the complaints and not present evidence outside of these proceedings. J1O of 28 Mr Muuya responded by stating that the letter of complaint was written promptly complaining about an issue that occurred in the teeth of Proceedings. That the complaint was formal and was contained in the Record of appeal and has been consistent. He reiterated that the Magistrate had indicated how he would decide the case before the matter was concluded. We have considered these particular Grounds of Appeal and note that none of the allegations can be substantiated from the Record of proceedings of the trial Court. The supplementary bundle contains letters and an Affidavit which form the basis of the allegations wherein it is insinuated that the Magistrate deliberately omitted incriminating comments and rulings from the Record. Our comment in this regard is that we agree with the learned DPP that these are mere allegations and prove nothing. The Affidavit sworn by learned counsel alludes only to the fact of being referred to as incompetent. This sentiment does not undermine the thorough consideration of the evidence by the trial magistrate. Therefore, no injustice was occasioned to the appellants on that score. In any event, learned counsel was content to proceed with the trial after writing a letter of complaint to the Resident Magistrate. He ought to have applied to the trial magistrate to recuse himself. Having not done so, we are left with no material to deal with on this particular issue. Jil of 28 We have perused the Record and observe that the trial Magistrate did at times employ very strong language. An example of this is at pages 47 to 49 of the Record of Appeal. The Court lamented about the several adjournments at the instance of Defence Counsel made mostly without filing notices to adjourn. The trial Magistrate was obviously frustrated by this. He certainly should have avoided saying things such as the underlined portion of this quote: "I have said that pursuit of this trial will not be determined by you the counsel for the accused as your conduct has shown since the trial began. You choose when to come to court and do you honestly expect me to dance to your music things unfortunately do not work that way and I will not allow that conduct in my court. As things stand your clients are even better off without your service (cid:9) ." The background to the above discourse is that at the previous hearing date, Defence Counsel did not attend trial and sent word through their clients, the Appellants, asking for an adjournment because they were appearing before the High Court. The trial Magistrate declined the application and ordered the trial to proceed and the Prosecution witnesses were cross examined by the Appellants themselves. J12 of 28 When the matter next came up for hearing, the defence asked that the matter be adjourned to allow Counsel to cross examine PW5. This occurred on 9th May, 2016 and even at this hearing, Counsel arrived at Court late, after PW6 had concluded testifying in-chief. Counsel asked for an adjournment to enable them prepare to cross examine PW5 but the Court declined the application. He however, allowed the Defence Counsel to proceed with cross examination of PW6 but Counsel declined and the Appellants conducted the cross examination of PW6 themselves. Even though we might not have expressed ourselves as strongly as the trial Magistrate did, we hasten to state that the Defence Counsel's conduct in this matter was nothing less than appalling and did indeed demonstrate a laisse affair approach in defending this case. Consistent failure by Counsel to attend Court without prior notice is contemptuous and history will show that some Courts have taken very strong action against errant Counsel in that regard. That being said, we have not seen see anything on the Record showing that the Magistrate conducted himself improperly or that he had made up his mind to convict the Appellants. Grounds 1, 2 and 3 are therefore dismissed. We shall now proceed to consider Grounds 6 and 7 and conclude with Grounds 4 and 5 which shall be considered as one. In Ground 6, it was alleged that: The Court erred in law and fact by relying heavily on the testimony of PW2, PW5 and PW6 who were all related to the complainant and were witnesses with an interest to serve. J13 of 28 The Appellants cited Section 5 (1) of the Evidence Act. It was submitted that even though the trial Court warned itself of the danger of relying on the evidence of witnesses with a possible interest to serve, it proceeded to wholly convict the Appellants on the statements of PW2 and PW5 without giving regard to the accuracy for the statement or the fact that the witnesses were related to the complainant and possibly had an incentive to misrepresent the facts. The Prosecution reacted by stating that the trial Court did not err by relying on the testimony of the said witnesses because their evidence was firm and unshaken in cross-examination and that other than the fact that they were related, nothing on the Record showed that they had an interest to serve. They cited the unreported case of Agrippa Antifellow v The People (3) in which the Supreme Court stated that relatives and friends are competent witnesses unless it is shown that they had a possible interest to serve. We were urged to dismiss this Ground. Mr. Muuya's reply on behalf of the Appellant was simply that the PW2 was the complainant's wife. Our view with regard to Ground 6 is that, it has been clarified time and again that being closely related to a victim does not automatically discount the evidence of a witness. In addition to the case cited by the State, we recall what the Supreme Court said in the case of Yokoniya Mwale v The People; J14 of 28 "The point in all these authorities is that these categories of witnesses may, in particular circumstances, ascertainable on the evidence, have a bias or an interest of their own to serve, or a motive to falsely implicate the accused the accused. Once this is discernible, and only in these circumstances, should the court treat those witnesses in the manner we suggested in the Kambarage case.... A conviction will thus be safe if based on the uncorroborated evidence of witnesses who are friends or relatives of the deceased or the victim, provided the court satisfies itself that on the evidence before it, those witnesses could not be said to have had a bias or motive to falsely implicate the accused, or any other interest of their own to serve. What is key in our view, is for the court to satisfy itself that the is no danger in the implication." In the case of Patford Mwale v the People (4), in which we considered the issue of witnesses with a possible interest to serve, we cited the Yokoniya case, amongst others, and stated that what is important is that the Court must satisfy itself that there is no danger of false implication. The record shows that, in casu, the trial Court warned itself of the inherent dangers and satisfied itself that none existed. We find no reason to overturn the Court's finding in that regard. Ground 6 is therefore dismissed. Ground 7 was that; The trial Court erred in law by holding that the convicts defence of an alibi could not be claimed at the point of their defence when in fact he failed to warn or inform them of the requirement of raising that defence at an earlier stage to enable the police to investigate it. J15 of 28 It was submitted in the Heads of Argument that as required by Rule 4 sub rule 9 of the Magistrates Courts Rules 1968, the trial Magistrate did not warn the Appellants to provide particulars of any alibi to the Court or to the Prosecution's solicitor at an early stage. It was argued that on account of this failure, it was erroneous for the trial Court to have held that the Appellants could not raise their alibis at the time they were put on their defence. The Prosecution referred to the unreported case of Anayawa & Sinjambi v The People (5) in which it was indicated that the issue of alibi should be raised by an accused person when cross examining relevant prosecution witnesses. In the cited case, the accused had failed to do so and the alibi was considered to be an afterthought. The learned DPP opined that the circumstances in this case were similar to those in the cited case and further, that some of the Appellants were apprehended by PW7 at the scene of crime trying to flee in a Mark II vehicle and all the Appellants were identified by Prosecution witnesses who knew them and the offence occurred during the morning. She submitted that the evidence against them was overwhelming and Ground 7 should be dismissed accordingly. J16 of 28 Learned Counsel replied by stating that the failure by the Appellants to raise the issue of alibi when cross examining the Prosecution's witnesses was because, as shown on pages 62 to 64 of the Record of Appeal, the trial Magistrate refused to provide the Defence Counsel an opportunity to do so. He argued that had counsel been allowed to cross examine, this issue would have been adequately dealt with. Counsel closed his arguments under this ground by stating that the record of proceedings on the said pages was confusing because on page 62, the Record shows that the Court sat on 28 September at 10:06 and the Court ruled that there would be no cross examination of the two witnesses but went on to close the Prosecution's case and put the Appellants on their defence. In line 15 at page 64 of the Record, the Court stood down the matter at 10:39 for Counsel to liaise with his clients but the record shows that this occurred on the earlier date of 23 September, 2016. We have looked at pages 62-64 of the Record of Appeal which Counsel for the Appellants described as confusing. In order to put the issue in context, it is necessary to reverse as far back as page 43 when Counsel for the Appellants walked into Court late whilst PW6 was giving evidence in-chief and after PW5 had already testified and been cross- examined by the Appellants, in person. Counsel asked the trial Magistrate to recall PW5 but the request was denied. Counsel was however invited to cross-examine PW6 but declined and PW6 was also cross-examined by the Appellants in person (see p.45). The next witness to be called was the arresting officer PW7 who testified about the Mark 11 vehicle. The Defence Counsel stated that she had no questions for the witness and the matter was adjourned. J17 of 28 The matter next came up on the 11th July, 2016 and after PW8 testified, Mr. Muuya on behalf of the Appellants applied to recall PW2 and PW5 and the application was granted. The matter came up on 19t July and the Defence Counsel asked for an adjournment asking for more time to read the Record and the application was granted. When the matter came up on 19t August, 2016, the state said it was closing its case but Mr. Muuya reminded the Court that it had allowed the re-calling of PW2 and PW5 for cross examination and the matter was adjourned to 15th September, 2016 for that purpose. At the next hearing, Counsel who attended on behalf of the Defence, asked for another adjournment stating that Counsel with conduct of the matter was attending to an election Petition and the matter was adjourned to 28th September and on that date, the Defence Counsel was absent yet again. The Court decided to proceed with trial and the Prosecution reminded the Court that it had already closed its case. The Court found all 6 Appellants with a case to answer and put them on their defence (p63). The Defence Counsel, once again, walked into Court late, whilst the Court was explaining to the Appellants their rights, upon being put on their defence. The Court ordered the Appellants to proceed with their defence and the matter was stood down for a few minutes. We note that when the proceedings continued, the date was mis-typed as 23rd September instead of the 28th (p.64). We also note that on this date the Record erroneously referred to PW2 as A2 (p.62 line 18). J18 of 28 It is therefore clear that the Defence Counsel's argument that there was no opportunity to cross examine the witnesses with regard to the alibi, is completely baseless. The relevant witness to cross-examine in that respect was the arresting officer, PW7. The Defence Counsel was present and simply stated that she had no questions for him in cross -examination. Mr. Muuya submitted that the Appellants actually informed the arresting officer, PW7, of their alibi at an early stage. He referred to page 52 line 19 of the Record of Appeal where PW7 stated that, all the Appellants told him that they never left the funeral house and in terms of the case of Katebe v The People (6), PW7 should have investigated their assertion, and, his failure to do so was a dereliction of duty. We note that Counsel omitted to read beyond page 19, which when read up to page 22 shows that PW7 said as follows, "Taking all these together and considering the situations in which these suspects were apprehended I found that the suspects were not being sincere and were not telling the truth. I therefore made up my mind to charge them with four counts." It is therefore clear that PW7 did in fact consider the so-called alibi which in our view was no alibi at all. None of the Appellants provided any detail other than simply stating that they were at the funeral quite contrary to the standard set out in the case of Bwalya v The People (7)• The arguments in relation to the issue of alibi under Ground 7 are consequently dismissed. We note that under Ground 7, Counsel also presented arguments in relation to the evidence of DW7 which we shall consider in his arguments under grounds 4 and 5 which we shall address as one. The grounds were as follows: J19 of 28 4. The trial Judge erred in law and fact by convicting the convicts without taking into consideration the failure in the prosecution's legal duty to act impartially and bring to the attention of the Court and the Defence evidence that was in support of the Appellants case. 5. The trial Court erred in law and in fact by convicting the Appellants based on the evidence of Prosecution's Witnesses and DW7 as evidence either direct/ circumstantial did not prove the prosecution's case beyond reasonable doubt as to who set the house, vehicle and shop on fire. At the hearing, under grounds 4, 5 and 6, learned Counsel for the Appellants once again, veered into arguments relating to a Ruling that was missing from the Record. We have adequately addressed the issue in our holding with regard to Grounds 1, 2 and 3. His written arguments under ground 4 are centred on the evidence of DW7, William Semba, in relation to his testimony that the police basically declined to record the evidence he was providing them because they only wanted him to say what they wanted to hear. As earlier indicated, he had advanced a similar argument under ground 7. It was submitted that DW7's evidence was to the effect that he saw the people who set fire to the J20 of 28 complainant's property and the Appellants were not amongst them and that this evidence was not discredited during cross-examination. Counsel opined that DW7 who was called as a defence witness should have been called by the prosecution because he testified that he was Chairman of CCPU and was liaising with the police over this matter. According to Counsel, DW7 told the police that he saw the people who set fire to PW2's property and none of the Appellants were involved. He said it was the Prosecution's duty to present to the Court all the evidence that has come into their possession even if it is unfavourable to their case. He cited several authorities and opined that failure by the police to record that evidence and present it to Court was a dereliction of duty because even though the Prosecution had no duty to present to the Court all the evidence it comes across, it has a duty to present relevant material evidence, as failure to do so impairs the fairness of the judicial process. It was further submitted that nowhere on the record did the trial Court make any mention of this dereliction of duty by the police but rather commented and reprimanded the Defence Counsel and their clients on numerous occasions. He concluded, on this score, that this was an appropriate case in which the Court can either acquit or order a re-trial. Learned Counsel for the Defence also took issue with the trial Court's interpretation of the evidence at page 124, lines 5 to 8 of the record of appeal that DW7 was present when the Appellants executed their plans because according to him, at page 89 lines 1 to 11, PW7 indicates that the Appellants were not seen setting fire to PW 1's shop. J21 of 28 Responding to these arguments, the State relied on the filed heads of argument which stated that none of the Prosecution witnesses, not even the arresting officer PW7, were cross-examined in relation to the allegations raised by DW7 in his testimony. According to the Prosecution, the trial Magistrate who had the opportunity to assess the demeanour of DW7, assessed him as an unreliable witness. Under Ground 5 Counsel for the Appellants pointed out alleged inconsistencies between the evidence of PW2 and PW4. It was further submitted that there were also inconsistencies between the evidence of PW3 and PW5 which cast doubt as to whether PW5 did actually see the Appellants at the scene of crime, especially where PW5 said she saw A6 fighting with PW3 at the scene whereas PW3 said no such thing and that he actually fled the scene. It was further pointed out that PW5 in examination-chief, stated that she saw A5 get grass for the purpose of lighting the fire but under cross examination by A3, she said it was A4. Counsel for the Appellants submitted that the said inconsistencies together with the evidence of DW7 showed that there was neither direct nor circumstantial evidence pointing to the Appellants as having set any of the subject property alight. It was opined that in terms of Woolmington v The DPP (8) and Mwewa Murono v The People (9), reasonable doubt had been cast in favour of the Appellants. J22 of 28 In response to these arguments, the Prosecution submitted that the evidence of PW2, PW3, PW5 and PW6 was overwhelming and there was no risk of mistaken identity because they knew the Appellants very well. It was pointed out that the incident occurred in broad daylight and over a long period of time and A3, AS and A6, in particular, were apprehended as they fled the scene of crime in a Mark II motor vehicle. The Prosecution opined that the Appellants believed that PW 1 was responsible for their relatives' death and set out with a common design to prosecute the offences for which they stood charged meaning that each of them was liable for the conduct of each of the others during the commission of the offences. Section 22 of the Penal Code and the case of Sakala v The People (10) were cited. It was submitted that the trial Court evaluated and analysed the overwhelming evidence before it and was on firm ground both in law and in fact to convict the Appellants. In cases of this nature where property is damaged or, as in this particular case, burnt during an attack by a mob, the evidence of identity is key. We dealt with the issue in the case of Joe Muleya, Justin Kavwema, Francis Sikombe & Eunice Mwaala v The People (11) in which the complainant's (PW 1 's) workshop was burnt during an attack by a mob on account of political differences. In that case, the key witnesses were PW 1 's J23of28 two sons who were PW2 and PW3. We observed that because the crime was committed by individuals who were part of a large mob, it was extremely crucial for the trial Court to satisfy itself thoroughly as to the proper identification of the four Appellants as the individuals who either collectively set the workshop on fire, or formed a common intent to set the workshop on fire. In the cited case PW2 and PW3 contradicted each other as to which appellant carried the grass broom which was used to torch the workshop and we noted that the variance of the two key witnesses as to the identity of the perpetrators was glossed over by the trial Court. We stressed that where mobs were involved, trial Courts must convict suspects only on clear evidence identifying the specific role they played in the commission of the offence. In the case of Francis Mayaba v The People (12), the Supreme Court of Zambia held as follows; "The facts of this case do not support a conviction of murder because quite apart from the element of provocation and drunkenness negativing intent to kill, this was a case of mob instant Justice and there was no evidence to show that the appellant or the juvenile delivered the fatal blow that caused the death". It's not good enough for a witness to say "they" when referring to specific individuals out of a mob. We cited the case of Haonga & Others v The People (13) in which the Supreme Court held inter-alia, that; J24of28 "Where two or more persons are known to have been present at the scene of an offence and one of them must have committed it, but it is not known which one, they must all be acquitted of the offence unless it is proved that they acted with a common design." We now turn to the evidence advanced by the witnesses against each Appellant in this case. PW2 specifically saw Al break windows but she did not see who actually set the house alight. PW3 saw A4, AS and A6 throwing stones and damaging vehicles. PW5 identified Al, A2, A3 and AS as having been at the scene but the only one she actually observed do something was Al whom she saw breaking windows. PW5 said she saw AS and another woman get the grass that was used to set the house alight. PW6 saw Al smash glasses and she saw A6 set the shop, house and car on fire. A summary of the evidence shows that Al was identified breaking windows, A4, AS and A6 were identified throwing stones and damaging vehicles. A6 was seen setting the vehicle and shop on fire. Even though A2 and A3 were identified as being at the scene, no witness identified any specific act committed by either of the two. PW4's evidence was quite contrary to the evidence of PW2, PW3, PW5 and PW6 in that she suggested that when she got to the scene, she found the mob had left and the house was intact and she in fact helped PW2 escape from the scene. The trial magistrate however disregarded her evidence and this is what he said, "In her testimony it was so apparent to me that she was trying to avoid out offear stating a clear identification of those involved." J25 of 28 The record shows that Appellants made bare denials and provided unsubstantiated alibis. The trial Magistrate completely threw out A6's story as a mare fabrication. The Magistrate considered the evidence of DW7 who basically placed all the Appellants at the scene quite contrary to the Appellants' claim that they were at the funeral house during the material period. The Magistrate further discounted DW7's evidence when, after considering PW4's evidence, he said as follows, " (cid:9) This was the same situation with DW7 except that he stated it clearly that he was threatened with death and that his property would suffer the same fate if he dared report or identify any of the perpetrators to the police." The trial Magistrate suggested that even in the absence of direct evidence of the offences having been committed by the Appellants, there was sufficient circumstantial evidence against them and having set out with a common purpose, they were ensnared by the doctrine of common intent capsuled in Section 22 of the Penal Code. We would say that in the face of direct evidence against the Appellants, as considered together with the requirements for convicting members of a mob, the issue of circumstantial evidence does not arise. With regard to the doctrine of common intent, in this particular instance the Record shows that the mob was huge and no proof was advanced that the participants actually set out, with common intention to commit the offences with which they were charged. J26 of 28 On account of the forgoing and the evidence on the Record, we find as follows; 1. The Prosecution did not prove its cases beyond reasonable doubt, against A2 Priscar Nyambe and A3 Esther Tembo, on the offences of Arson contrary to Section 328 (a) of the Penal Code Chapter 87 in respect of Count 2 and Count 3. The Appeal is therefore allowed in respect of A2 and A3 and they are consequently acquitted and set at liberty forthwith. 2. The Prosecution did not, prove its cases beyond reasonable doubt against Al Loveness Nyambe, A4 Pamela Nyambe and AS Osiya Chindala on the offences of Arson contrary to Section 328 (a) of the Penal Code Chapter 87 in respect of Count 2 and Count 3 but did on the evidence prove a case of malicious damage contrary to section 335 (1) of the Penal Code. We therefore set aside the conviction for the offence of arson but exercise our power under Section 181 of the Criminal Procedure Code to convict the Appellants on the lesser charge as we now do and Al, A4 and AS are accordingly convicted of the offence of causing malicious damage and sentenced to 2 years imprisonment commencing with the date on which they were incarcerated. 3. The Prosecution did prove its case beyond reasonable doubt against A6 Billings Nyambe on count 3 and count 4 for Arson contrary to section 328 (a) of the Penal Code Chapter 87. J27 of 28 4. The Prosecution failed to prove its case against A6 on Count 5 for the offence of causing Malicious Damage contrary to section 335 (1) (b) of the Penal Code but did on the evidence prove its case beyond reasonable doubt against A6 on the lesser offence of malicious damage contrary to section 335 (1) of the Penal Code. We therefore set aside the conviction for the offence of causing malicious damage contrary to section 335 (1) (b) of the Penal Code and in its place convict A6 of the offence of causing malicious damage contrary to section 335 (1) of the Penal Code and he is accordingly convicted. 5. With regard to counts 3 and 4 we find no reason to interfere with the trial Magistrates' sentence of ten (10) years imprisonment with hard labour meted out to A6 on each count and the sentences therefore remain the same and shall run concurrently. 6. However, having replaced the conviction of malicious damage under Section 335 (1) (b) with malicious damage under section 335 (1) the sentence of 10 years meted out to A6 by the trial magistrate is reduced to 2 years' imprisonment. 7. For the sake of clarity, with regard to A6, the two ten (10) year sentences in respect of counts 3 and 4 and the two-year sentence in respect of count 5 shall run concurrently. J28 of 28 F. M. CHISANGA JUDGE PRESIDENT .00 M. M. KONDOLO Sc (cid:9) COURT OF APPEAL JUDGE (cid:9) B. M. MA4UtA COURT OF APPEAL JUDGE