Nyambe Namushi v People (APPEAL NO. 157/2021) [2022] ZMSC 54 (10 June 2022)

J 1 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA {Criminal Jurisdiction) APPEAL NO. 157/2021 BETWEEN: NYAMBE NAMUSHI APPELLANT AND THE PEOPLE COURT OF jl,DlClARY O :'''.l 2022 ::t rc,!,l.!;= __ s""··· !.\!Jl,,~- RESPONDENT Coram: Hamaundu, Kaoma and Chinyama, JJS On 5 th April, 2022 and 10th June, 2022 For the Appellant: Mrs M. K. Liswaniso, Senior Legal Aid Counsel For the State Mrs M Muyoba-Chizongo, State Advocate JUDGMENT HAMAUNDU, JS, delivered the judgment of the Court Cases referred to: 1. Muziba & Another v The People (2012) 3 ZR 539 2. David Zulu v The People (1977) ZR 151 3. Situna v The People (1982) ZR 115 4. Mtonga & Another v The People (2000) ZR 33 J 3 us to review the testimony on the record and determine whether or not we would have arrived at the same conclusion as that of the trial judge. Accordingly, at the hearing of this appeal, we.asked the appellant not to file any ground of appeal; but to only submit the way he would have done at the trial. 2.0 The Prosecution's case 2. 1 The facts 2.1.1 The facts which the prosecution sought to establish were these: The deceased, Philip Samutela, was a police officer stationed at Mongu Central Police station. He lived in the police camp, in a house to which was attached another dwelling structure. Some members of the family lived, and slept, in that structure. 2.1.2 On 1st March, 2015 around 04.00 hours, a thief broke into the adjoining structure. When alarm was raised, the deceased came out of the main house, through a window, and gave chase to the thief. The thief escaped, but the deceased was found lying down with stab wounds, in the same direction that he had headed in J4 pursuit of the thief. The deceased was taken to the hospital where he was pronounced dead on arrival. 2.1.3 In the meantime, it was found that a laptop computer had been taken from the dwelling structure, while a television set was dumped at the door. A day or two later, the appellant and his co-suspect were apprehended in a township of Mongu on some other allegations of theft. 2.14 The appellant then led the police to a hidden place .where a number of items were found, including a laptop. The laptop was identified to be that of the deceased. This was confirmed when the laptop was opened and pictures of the deceased were found on it. 2.2 The evidence against the appellant 2.2.1 The testimony that particularly incriminated the appellant came from three witnesses. 2.2.2 The first of these was Kachanga Chibinde (PW2), the deceased's siter in-law who used to sleep in the adjacent structure. Her testimony was that she confronted the thief when he picked up the laptop, and she held him by his shirt. However, the thief pushed her and ran away. The witness subsequently picked out the appellant at an J 5 identification parade and said that that was the thief that she had held on the fateful night. 2.2.3 Another witness was Kalenga Kalenga (PW3), a resident of Tukongote area in Mongu. This witness told the trial court that a few days after the beginning of the month of March, 2015, he came across a crowd that had apprehended two thieves, who turned out to be people that he knew. He said that the two people were; the appellant, whom he knew as Chinyemba and another person named Saviour. The witness said that the appellant voluntarily took the crowd to a place where he had hidden stolen items. Among the things that were found at that place was a laptop computer. The witness told the court that the appellant and his co-suspect were then handed over to the police, together with the latptop computer and other recovered items. 2.2.4 The third witness was Detective Chief Inspector Mulimba (PW4), one of the police officers to whom the appellant and his co-suspect were handed over by the crowd. According to the witness, it was around 10:00 hours on the same morning of the robbery and murder J 6 that he was assigned, with other police officers, to go out and investigate the case. When they were in a compound called Mbowa, he heard a crowd shouting "thief'. They went to that crowd and found the appellant and his co suspect in the custody of the crowd. The two suspects also had in their possession a laptop computer which looked similar to the one that was stolen from his deceased colleague. 2.2.5 The witness told the court that when the laptop was turned on, there were many pictures of the deceased on it. 3.0 The Defence 3.1 In his defence, the appellant denied having participated in the robbery and murder. He, however, confirmed that he was found in possession of the laptop computer belonging to the deceased. He explained that a person that he knew had come with it from Lusaka and left it at the appellant's home, together with other items such as hair extensions. According to the appellant, his grandmother with whom he lived, ordered him to take those things back to· the· J 7 owner. It is then that he followed his friend, but did not find him. So, the appellant then left them by a stream. 3.2 That was the evidence upon which the appellant was convicted. 4.0 The Appeal 4.1 The Appellant's argument 4 .1.1 The appellant argues that the entire evidence for the prosecution at the trial was circumstantial, and had not taken the case out of the realm of conjecture. The appellant relies on the case of David Zulu v The People'21 for that argument. 4.1.2 At the hearing, counsel for the appellant, Mrs. Liswaniso, pointed out what she considered to be weaknesses in the prosecution evidence. She said that PW2's opportunity to observe the thief on the night of the robbery was not clear because the encounter took place during a brief and stressful moment. Counsel also pointed out that on the day of the identification parade, PW2 said that one of the features that she was able to recognise the appellant as the thief that she had seen was his height; he was said to J 8 be tall. Yet, on the identification parade itself, the participants had been made to sit down. Counsel argued that, in the circumstances, the possibility that PW2 made an honest mistake in her identification of the appellant could not be ruled out. 4.1.3 Mrs. Liswaniso further pointed out that the appellant explained to the court that he had received the laptop computer from a man named Sikwibele Nyambe. She argued that, although the appellant was found with the laptop only four days after the robbery, an item such as a laptop could easily change hands within that period in circumstances such as those revealed in the appellant's explanation. 4.2 The Prosecution's argument 4.2.1 The prosecutions' response is that there is nothing to show that PW2 could have been honestly mistaken. Mrs Muyoba-Chizongo submitted that, though coming from a single witness, the evidence of identification was of very good quality and, therefore, credible; and that it met the J 9 test that has been laid down in cases such as Situna v The Peoplel31 . 4.2.2 Counsel pointed out that PW2 was so confident in her recognition of the appellant that, on the day of the parade, she was able to pick him out on three occasions; even after the participants had exchanged clothes. 4.3.3 Responding to the explanation by the appellant about his possession of the laptop computer, Mrs Muyoba Chizongo submitted that the explanation was an afterthought. According to counsel, this was because at no time did the appellant raise the issue when the prosecution were presenting their case. 5.0 Our Decision 5.1 Findings of fact 5.1.1 In view of the defence that the appellant had adopted at trial, the following facts were not in dispute; that on the morning of 1st March, 2015, a thief broke into the structure adjoining the house of the deceased and stole therefrom a laptop belonging to the deceased; that when the deceased gave chase to the fleeing thief, he was J 10 stabbed to death. The laptop was taken, and was only recovered a few days later. 5.2 Conclusion on the facts 5.2.1 On these facts alone, the offence of aggravated robbery was established. This is because the stabbing of the deceased meant that the intruder used violence in order to retain the stolen laptop. Again, on these facts, the offence of murder was established because the killing occurred in the course of the commission of a felony, meaning that malice aforethought was proved. 5.3 Legal issues for determination Effect of possession and identification 5.3.1 The only issue that was in dispute was the identity of the thief that committed the two crimes. In this case, two pieces of evidence were pointing to the appellant. First, it was his possession of the laptop a few days after the crimes were committed. Secondly, it was the testimony of PW2 who said that she had recognised the appellant as being the person that took the laptop. 5.3.2 Ordinarily, when either of these two types of evidence Jll features alone in a case, it is customary to test it through the several rules that have been laid down for that purpose. For example; in the case of identification, we test it through several searching questions to witnesses with the aim of establishing the prevailing conditions of the initial encounter, and the basis upon which the witness claims to recognise the person; in the case of possession, again, it is customary to examine the time-lapse between the crime involving the item in question and the date of the accused's actual possession thereof. It is also customary to examine the nature of the item in possession and how quickly, and easily, it can change hands. 5.3.3 However, when both pieces of evidence are present in a case, and are against the same accused person, the approach differs altogether. In the case of Mtonga & Another v The People<3 1 this is what we said: "We wish to take this opportunity to correct the misconception which is quite prevalent in this area of the · law, that the so called doctrine of recent possession will always be invoked whenever an accused person is said to have been found in possession of stolen property. It is not always necessary that the doctrine of recent possession must be invoked especially where there is evidence of identification which if adequate on its own will be sufficient to sustain a conviction or which if requiring to be supported will then be supported by the possession of the stolen goods". In that case we went on to conclude the matter in the following words: "In this particular case, there was evidence of identification and this was amply supported by the finding of the second appellant and his co-accused in possession of the stolen vehicle. Such possession provided the necessary connecting link to corroborate the eyewitness identification, thus removing any possibility of a mistaken identification." 5.3.4 Likewise in this case, there was mutual corroboration of the two pieces of evidence: hence PW2's evidence of identification was corroborated by the appellant being in possession of the laptop; and, similarly, the ihculpatory effect of the appellant's possession of the laptop was corroborated by PW2's evidence of identification; 1n other words, the appellant's explanation as to how he came into possession of the laptop was rebutted by PW2's evidence of identification. J 13 6.0 Conclusion 6.1 In conclusion, we are in no doubt that there was overwhelming evidence before the trial judge to support the conviction that he arrived at. We, therefore, find no merit in the appeal. We dismiss it . . . . . . . . . . . . . . . . . . <)fl~, ... E. M. Hamaundu SUPREME COURT JUDGE ................ \.~.:: ............. . J. Chinyama SUPREME COURT JUDGE