Muliya Phiri v the People (Appeal No 57/2021) [2022] ZMCA 212 (15 June 2022)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No 57/2021 BETWEEN: MULIYA PHIRI AND THE PEOPLE APPELLANT RESPONDENT CORAM: Mchenga DJP, Sichinga and Muzenga, JJA On 18~ January 2022 and 15~ June 2022 For the Appellant: A. Banda, Legal Aid Counsel, Legal Aid Board For the Respondent: M. Kapambwe-Chitundu, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. CASES REFERRED TO: 1. Edward Sinyama v The People [1993-1994] Z. R. 16 2. Bwanausi v The People [1976] Z. R. 103 3. Dorothy Mutale and Richard Phiri v The People [1995- 1997] Z . R. 4. David Zulu v The People [1977] Z. R. 151 5. P. L. Taylor and Others v R 21 Cr. App. R. 20 6. R v. Hochman, Vockey and Peables [1956] 113 CCC 319 J2 LEGISLATION REFERRED TO: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1. INTRODUCTION 1.1. The appellant, appeared in the High Court (Muma, J.), on a charge of murder contrary to section 200 of The Penal Code. He denied the charge and the matter proceeded to trial. 1. 2. At the end of the trial, he was convicted for committing the offence and condemned to suffer capital punishment. 1. 3. He has appealed against his conviction and has advanced two grounds in support of the appeal. 1. 4. The thrust of his case is that an inference that he committed the offence, is not the only inference that could have been drawn on the circumstantial evidence that was before the trial judge. 2. CASE BEFORE THE TRIAL COURT 2.1. The evidence against the appellant, was that on September 2 018, around midnight, he approached Anderson Mbaakani and Isaiah Pumulo at J3 Mr. Muntanga's farm in Kafue District. He was wearing a cap and long sleeved shirt. 2.2. He informed them that his charcoal kiln, which was on the same farm, had been tampered with and he suspected that it was Nafutali Ngoma. He was enraged and he told them that he was going to beat up Nafutali Ngoma. 2. 3. They tried to discourage him, but he picked a shovel and headed in the direction where Nafutali Ngoma used to stay. Soon thereafter, Pumulo Isaiah heard the appellant and Naftali Ngoma arguing. 2. 4. The following morning, Patrick Mwelwa visited Nafutali Ngoma, after being informed that he had been assaulted. He found that he had suffered multiple injuries to his limbs and head. 2.5. Nafutali Ngoma told him that he was assaulted by a young man who had built a charcoal kiln nearby and was wearing a cap and long sleeved shirt. 2. 6. Patrick Mwelwa took him to the hospital where he died soon after arrival. A post-mortem conducted on his body concluded that he died due to multiple J4 injuries and fractures he had suffered on his head and limbs. 2. 7. In his defence, the appellant admitted having approached Anderson Mbaakani and Isaiah Pumulo over his damaged charcoal kiln but denied having threatened to beat Nafutali Ngoma over it. He also denied assaulting Nafutali Ngoma. 2. 8. The trial judge found that Patrick Mwelwa's statement of what Nafutali Ngoma told him was admissible as res gestae. He also found that an inference that the appellant murdered Nafutali Ngoma was the only one that could be drawn on the evidence that was before him. 3. GROUNDS OF APPEAL 3.1. Two grounds have been advanced in support of the appeal. The first is that Patrick Mwelwa's testimony should not have been admitted into evidence res gestae. 3.2. The second ground of appeal is that an inference that the appellant murdered Nafutali Ngoma was not JS the only inference that could have been drawn on the evidence that was before the trial judge. 4. ARGUMENTS IN SUPPORT AND AGAINST THE 1 sT GROUND OF APPEAL 4 .1. In support of the 1 st ground of appeal, Ms. Banda referred to the case of Edward Sinyama v The People 1 and submitted that the testimony of Patrick Mwelwa did not meet the threshold for admission of such evidence as res gestae. 4.2. In response, Mrs Kapembwa-Chitundu submitted that the statement was admissible as res gestae, because of the injuries suffered by Nafutali Ngoma were so severe that his statement to Patrick Mwelwa, on the circumstances in which he suffered his injuries could not have been concocted or distorted. 5. COURT'S DECISION ON THE 1 st GROUND OF APPEAL 5 . 1 . In the case of Edward Sinyama v The People1 , Chief Justice Ngulube, delivering the judgment of the Supreme Court, pointed out as follows: "It is also not correct that a statement will be ineligible to be treated as part of the res gestae J6 if a question has been asked and the victim has replied or if the victim has run for half a kilometre to make the report. If the statement has otherwise been made in conditions of approximate, though not exact, contemporaneity by a person so intensely involved and so in the throes of the event that there is no opportunity for concoction or distortion to the disadvantage of the defendant or the advantage of the maker, then the true test and the primary concern of the Court must be whether the possibility of concoction or distortion should actually be disregarded in the particular case. The possibility has to be considered against the circumstances in which the statement was made. In the case at hand, the event was certainly unusual or dramatic or traumatic." 5. 2. From the forgoing, it is clear that for a statement by a deceased person, to be treated as res gestae, it must made during or very soon after (proximate to) the attack that causes that person's death. Whether a statement was made proximate to the attack is dependent on the particular circumstances of the case. J7 5. 3. In this case, Nafutali Ngoma was confronted by the appellant on the 25 th of September 2018, just after midnight. Al though Pumulo Isaiah heard them quarrelling, he could not tell the exact time that he was attacked because he did not see him being attacked. 5 . 4 . Further, from the evidence that was before the trial court, it is not clear who reported the appellant to Patrick Mwelwa, but it is apparent that that person had found him already injured. 5. 5. From this evidence, it is clear that Nafutali Ngoma did not tell Patrick Mwelwa of the circumstances in which he was attacked proximate to his being attacked. 5 . 6 . In view of the fact that the reporting by Nafitali Ngoma to Patrick Mwelwa was not soon after the attack, we are persuaded by Ms. Banda's argument that the statement should not have been admitted as res gestae because it was not made in "approximate proximity" to the attack. JS 5 • 7 . The fact that Nafutali Ngoma was badly injured, cannot, as has been suggested by Mrs. Kapambwe- Chitundu, be the sole basis of treating the statement as res gestae. It is one of the considerations where there is evidence of the statement being made proximate to the attack. 5 . 8 . We find merit in the 1 st ground of appeal and find that the trial judge erred when he received Nafutali Ngoma's statement of how he was attacked as res gestae. The first ground of appeal succeeds. 6. ARGUMENTS IN SUPPORT OF AND AGAINST THE 2ND GROUND OF APPEAL 6 .1. In support of the 2~ ground of appeal, Ms. Banda referred to the cases of Bwanausi v The People 2 , Dorothy Mutale and Richard Phiri v The People3 and David Zulu v The People 4 and submitted that since there were other charcoal kilns on the farm where Nafutali Ngoma was assaulted, an inference that the appellant caused Natutali Ngoma's death is not the only one that could have been drawn on the evidence J9 that was before the trial judge; someone else, could have assaulted him. 6.2. In response, Mrs. Kapambwe-Chi tundu submitted that the trial judge correctly drew the inference that the appellant caused the death of Nafutali Ngoma. She referred to the cases of P. L Taylor and Others v R5 , R v. Hochman, Vockey and Peables 6 and Edward Sinyama v The People 1 in support of the proposition. ?. DECISION OF THE COURT ON THE 2ND GROUND OF APPEAL 7. 1. In the cerebrated case of David Zulu v The People 4 , it was held, inter alia, that: (i) It is a weakness peculiar to circumstantial evidence that by its very nature it is not direct proof of a matter at issue but rather is proof of facts not in issue but relevant to the fact in issue and from which an inference of the fact in issue may be drawn. (ii) It is incumbent on a trial judge that he should guard against drawing; wrong inferences from the circumstantial evidence JlO at his disposal before he can feel safe to convict. The judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjecture so that it attains such a degree of cogency which can permit only an inference of guilt. 7. 2. Having found that Patrick Mwelwa's evidence that Nafutali Ngoma told him that a man wearing a cap assaulted him, should not have been received into evidence, the circumstantial evidence against the appellant can be summarised as follows; he approached Anderson Mbaakani and Isaiah Pumulo enraged by the damage to his charcoal kiln. 7. 3. The appellant accused Nafutali Ngoma of having caused the damage and threaten to attack him. He picked up a shovel and headed in the direction where Nafitali Ngoma stayed. 7. 4. Moments later Pumulo Isaiah heard him quarrelling with Nafutali Ngoma. Hours later, Nafutali Ngoma was found with injuries that turned out to be fatal. Jll 7. 5. On this evidence, we are satisfied that the trial judge could have still arrived at the inference that it was the appellant who inflicted the injuries that caused Nafutali Ngoma's death. 7. 6. He was found fatally injured not long after the appellant had picked a shovel heading to his place, having threatened to beat him. The two were heard quarrelling prior to the finding. 7. 7. In the absence of evidence that some other person had any difference with Nafutali Ngoma or a reason to attack him, we are not persuaded by Ms. Banda's argument that someone else could have attacked him. 7. 8. Consequently, we find no merit in the 2 nd ground of appeal, and we dismiss it. 8. VERDICT 8. 1. Even though we allowed the first ground of appeal and found that the trial judge erred when he accepted the statement Nafutali Ngoma gave to Patrick Mwelwa as res gestae, we are satisfied that properly assessing the evidence before him, the trial judge would still have arrived at the same conclusion. Jl2 8. 2. He would have still found that the only inference that could be drawn on the evidence before him, was that the appellant murdered Nafutali Ngoma. 8. 3. This being the case, we find no merit in this appeal and we dismiss it. Deputy Judge President , SC Judge K. Muzenga Court of Appeal Judge