Kopa v People (Appeal 79 of 2017) [2018] ZMSC 39 (5 June 2018)

IN THE SUPREME COURT OF ZAMBIA SCZ APPEAL NO. 79 / 2017 HOLDEN AT KABWE (Cr iminal Jurisdiction) BETWEEN: RABAN MWENI KOPfj_ ri.::;-~::, . so . ~ ... ! . I • • I ' ~ 1\ ":'-~·, ' . '' .. ~ ...... ""\ - .. · . L· I ··~ APPELLANT AND THE PEOPLE Lt: ~ .. i-' :-. ---- ---- RESPONDENT CORAM: Hamaundu, Kaoma and Kajimanga, JJS On 10th April 2018 and 5 th June, 2018 For Appellant: Ms . M. K. Liswaniso-Legal Aid Counsel For Respondent: Mrs . M. K. Chitundu-Deputy Chief State Advocate JUDGMENT KAOMA, JS delivered the J u dgment of the Court. Cases referred to: 1. Shawaz Fawaz and Prosper Chelelwa v The People (1995-97) Z . R . 2. Nondo v Director of Public Prosecutions (1968) Z. R. 83 (C. A) 3 . David Zulu v The People (1977) Z. R. 151 (S. C .) 4 . Mwiya And Ikweti v The People (1968) ZR 53 5. Ilunga Kabala and John Masefu v The People (1981) ZR 102 6. The People v John Nguni (1977) ZR 376 7 . Sinyama v The People (1993-1994) ZR 16 8. Bwanausi v The People (1976) ZR 103 Statutes referred to: 1. Penal Code, Cap 87, section 200 2. Criminal Procedure Code, Cap 88, section 204 (b) and (c) J2 The appellant was convicted by the High Court a t Mansa of the murder of five members of one family on or about 21 st December 2014 at Samfya in Luapula Province and was sentenced to d eath . The undisputed facts as is r elevant to this appeal were that on 21 st December , 2 014 around 16 :00hours, the appellant was drinking home brewed beer with late Robinson Chibesa, PW 1 and other people at the house of PW2 in Lembo village in Samfya. The appellant differed with Robinson Chibesa and a fight erupted b etween them but PW 1 and other p eople managed to stop the fight. The evidence showed tha t the appellant was the aggressor. Thereafter, the a ppellant was h eard by PW2 , outside her house s ay that for him whoever provoked him , the figh t did not e nd and tha t tha t d ay h e was going to blow some explosives. The a ppellant then went to PW4 's shop across the road and bought two boxes of m a t c h es known as 'elephant'. This was around l 7:00hours. La ter that night, a fire burnt down Robinson Chibesa's house as h e s lept with his wife and three childre n. They all s uffered third degree bums in the fire. Concerned villagers who broke dow n a portion of the wall r escu ed them from the burning house. Sadly, J3 Robinson Chibesa and two of the children died that d ay while his wife Eunice and son Robby were admitted to Mansa hospital. PW7 visited the crime scene the next day . He found the burnt bodies of Robinson Chibesa, Musonda Chibesa and Theresa Chibesa. He carefully searched the scene for any clue of what could h a ve caused the fire. He found a used m a tchstick n ear the entrance to the house and a box of matches about seven m etres away. He also learnt that Robinson Chibesa h ad earlier fought with the a ppe llant at a drinking place but h e failed to find the appellant because h e had gon e into hiding in the bush. He a dvised relatives to bury the bodies in marked gr aves and left word with the villagers , to a ppre hend the appellant if seen and surrender him to the police. Late r , PW3 and his wife (a sister to the a ppellant) were told by their children tha t the appellant h a d a sked for some food as h e was hungry. They prepared food for him so that they could a pprehend him. PW3 called the appellant from the bush and alerted other villagers so that they could assist to a pprehe nd the appella nt. Whilst the a ppellant was eating in the house, PW3 called out to him , asking if h e had finished so that they could take him to th e police. The app ellant came out with a plate of n s hima and J4 threaten ed to hit PW3 with it, even as h e a ttempted to run away. PW3 grabbed him but h e slipped out of his leath er jack et, leaving it in PW3's hands . Howeve r , th e villagers m anaged to apprehend him. A box of m atch es was found in his jacket. He was handed over to th e p olice together with the jack et and the box of m atch es . The next d ay, PW7 collected the a ppellant from Mwewa Police Post and h a d him d etained in the cells at Samfya Police Station between l 9:00hours and 2 0:00hours. An h our b efore that, PW6 had been d etained in th e same cells for a traffic offence. He had found three other detainees in the cells. According to PW6, it was cu s tom ary for a new detainee to explain to others why he was b eing detained. Thus , the young man th at was d etained after PW6, narrated that h e was from Ng'umbo area. He h a d u sed a m atch stick to set fire at the en trance , and at a corner of a house of a man h e h ad diffe red with at a drinking place. He then stood at a distance to observe the events. When he h eard the occupants of the h ou se screaming and he saw many people gather at the burning h ouse , h e ran away. PW6 revealed that it was dark in the police cells because there was no ligh t , a nd so h e did n ot see the face of the young man, but h e h eard his narration. JS After the appellant's detention, Robby Chibesa also died. His body was taken to Mwewa. Afterward , the bodies of the other three deceased were exhumed. Postmortems conducted on the four bodies, confirmed that they all died from the burns. Next, PW7 visited Eunice Chibesa in hospital . She disclosed that her husband h a d told h er of the fight h e had with the a ppellant and the threats . Tha t night, she woke up to a house full of smoke. She h eard a voice she identified as that of the appellant saying; "if you are a champion , wake up and come out to fight with me ." Sadly, Eunice also died on 12th January, 2015. A postmortem conducted on h e r body r evealed that she too died from the burns. In his d efence , the appellant d enied uttering threats against Robinson Chibesa or setting fire to his house. He claimed his uncle told him about the fire the following morning. F earing ly n ching by villagers, h e immediately ran away from home with his uncle a nd their children and all his property. He said h e ran away b ecause h e was innocent. He conceded that PW6 's testimony was true. There was no dispute in the court b elow that no one s aw t h e a ppellant s e t fire to the house in issue . The question the court had to resolve, from the circumstantial eviden ce b efore it, was whether J6 the appellant, set fire to the house as alleged by the prosecution or the fire started from within the house, as claimed by the defence. According to the court below, the evidence of PWs 1, 2, 4, 6 and 7 connected the appellant to the allegation. For convenience, the court first dealt with the evidence of PW6. The court observed that PW6 was detained for a traffic offence, which h ad no bearing on the offence the appellant was charged with; that PW6 did not know the appellant prior to that date; and that this was clearly a chance meeting in the darkness of the police cells. The court also found no motive for PW6 to concoct a story, merely to implica te the appellant, with whom he had not differed, particularly, that the appellant had admitted PW6 's evidence as true. Based on the foregoing, the court accepted the testimony of PW6 and found that the person who confessed to committing the offence, was the appellant who came from Samfya and took judicial notice of the fact that the common dialect in Samfya District, including Mwewa Chiefdom, is Ng'umbo. The court also considered 'odd coincidences', which were not explained by the d efence , namely : (1) PW6 's evidence that the appellant confessed that h e had quarreled and fought with the J7 deceased at a drinking place was confirmed by PWs 1 and 2 . (2) The appellant was heard by PW2 uttering reprisals and threats against Robinson Chibesa. (3) PW2 saw the appellant buying matches in the shop across the road and PW4 confirmed that the appellant bought two boxes of matches known as 'elephant' from his shop. (4) PW7 recovered a used matchstick and box of matches , about seven m e tres from the burnt house during his investigations at the scene, whose brand was 'elephant', the same brand PW4 sold to the appellant. (5) When PW7 tried to follow up the matter with the appellant, he discovered that h e had gone into hiding in the bush. The r eason the appellant gave was that h e feared reprisals from the villagers, but h e did not explain why from all the r esidents of the village, villagers should single him out for reprisals . (6) When the appellant was lured from the bush with food, h e tried to run away leaving behind his leather jacket where a box of matches was found. (7) No explanation was given by the appellant why his own relatives would , for no apparent reason, be in the forefront of ensuring that he was apprehended and brought to justice . The court found the evidence overwhelming a nd concluded that the only reasonable inference that could possibly b e drawn J8 from th e evidence in the circumstances was that it was the appellant who set fire to the house in which the deceased were sleeping. The court found that setting fire to the house was a felony and that the a ppellan t knew or ought to have known that he would cause grievous h arm to the people who were sleeping inside. The court also found malice aforethought in terms of section 204 (b) and (c) of the Criminal Procedure Code, Cap 88 established . Finally, the court found that it was the appellant's guilt knowledge of what he had done, that sent him into hiding; and that this was the only reason he feare d reprisals from the villagers. As a final point, the court found the appellant guilty of murder on all the five counts and gave him the u ltimate penalty of d eath. Aggrieved b y the d ecision, the appellant has appealed against both conviction and sentence advancing two grounds as follows: 1. The trial Judge erred in law and fact when she accepted PW6's evidence that the appellant confessed to having set on fire the house of Robinson Chibesa resulting in his death and four other members of his family. 2 . The Judge erred in law and fact when she held that the only reasonable inference that could be drawn from the circumstances was that the appellant set fire to the house the deceased p e rsons herein were sleeping in. J9 In ground 1, the gist of the argum e nts by counsel for the a ppellant is th at the trial judge erred in accepting the eviden ce of PW6 a nd m a king a finding that the p er s on w ho confessed t o committing the offe n ce was the appellant who came from Samfya. In support of this argument, counsel cited the following m a tters: (1) PW6 found three p eople in the p olice cells . Since it was dark, h e was una ble to identify them . (2 ) PW6 did not tell the court whe re the three p eop le had come from or the offen ces they were charged with. (3 ) When the young man from Ng'umbo wa s taken to the cells, PW6 was unable t o see his face a s it w as dark. Th erefore, it could b e infe rred that the p er s on who confessed was any of them . (4 ) No eviden ce was a dduced b y th e Sta te t o c onfirm tha t PW6 was in cu s tody the night the alleged confession was m a d e n or did PW6 produce the receip t h e got after p aying the fine to the police. Coun sel for the a ppellant quoted the case of Shawaz Fawaz and another v The People 1 wher e it was sta ted tha t it is n ot s ufficient for the trial court to find tha t th e prosecution witness prob a bly s p ok e the truth ; a nd that the eviden ce of the witn ess mus t b e accep ted b eyon d reasona ble doubt. He a r gued that it was n ot s uffic ie n t for th e court to find tha t PW6 prob a bly s p ok e the truth . JlO Counsel further r eferred u s to the a ppella nt's reply at page 77 of the r ecord that, the evidence PW6 was giving in court was true, and a r gu ed that this did not amount to a confession a s t h e question put to him was very broad and general, it did not specify facts of what PW6 h a d said, and no name was m entioned. Hence, the a ppellant could n ot b e taken to have known the m eaning of PW6. In ground 2, the substance of the a ppella nt's a rgumen t is that the r espondent d id not adduce any evidence to dispr ove acciden tal fire or to prove that the house h a d been burnt by an intentional and m a licious act. It was submitted that no witnesses were called to testify tha t the deceased h a d put out their cooking fires; and that no eviden ce was a dduced to show that there were n o grass fires from which sparks might com e . The case of Nondo v Director of Public Prosecutions2 was cited as authority for t his argument. It was also a r gued that the fact that the a p pella n t went into hiding did not prove that h e was running away because he was guilty. That the explana tion he gave was a reason able explanation in t h e circumstances; and an infe ren ce of guilt was not the only one that could be drawn from th e circumstan tia l evid ence which did n ot satisfy the test laid down in th e case of David Zulu v The People 3 . Jll The State mounted a joint response to the grounds of a ppeal. According to the learn ed State Advocate, the only issue to be resolved in this appeal is who set fire to th e h ouse? In the main , counsel supported the trial court's findings of fact and con clusions and the 'odd coincidences' which the court found were not explained by the a ppella nt. It was argued that the a ppellant did not suggest any motive on the p art of PW6 to implicate him falsely. That to the contrary, the a ppellant a dmitted the evidence of PW6. On the a ppellant's argument tha t the p erson who confessed could h ave b een anyone of the three other p eople in the cells, it was submitted first , that th ere was no other p lace where five people were burnt on the fateful night a part from the area the appellant came from. Second, that the appellant did not refute PW6 's allegation that it was h e, who confessed while in the cells. Third, th a t the a ppellant a dmitted tha t h e was put in the cells at Samfya p olice station on the evening of 23rd December, 2 014. The case of Mwiya and Ikweti v The People4 quoted by the learn ed State Advocate in th e court below was again relied on. Th e r elevant part of the obiter remarks by Doyle, J . A. (as h e the n was) were quoted in the judgm ent of the court b elow at p age 98 of the record of appeal. J12 The k ernel of the arguments on this point is th at it was up to the appellant to d en y that he made th e confession in the cells, conside ring that h e was legally r epresented throughou t his tria l. According to th e State Advocate, though this case hinges on circumstantia l evidence, there was direct eviden ce from PWs 1 and 2, which in part was confirmed by PW4. Furthe r , that PW6's testimon y was consistent with that of PW7 , who recovered a used matchstick a nd a m a tchbox n ear the burnt house whose brand , was 'eleph ant', the same type PW4 said h e sold to the appellant. It was argued that on his appreh ension, the a ppellant was found with only one box of m a tches when h e h a d bought two boxes because the other box dropped at t h e scene wh ere he had lit the h ouse. It was also argued that it was not a m er e coinc iden ce that after the a ppellant made threats against Robinson Chibesa, his hou se was burnt down a nd h e a nd his family were burnt to d eath and the appellant offer ed no reasonable explanation in his d efence. To support this argum ent, counsel cited the case of Ilunga Kabala and John Masefu v The People5 where it was held th at odd coinc idences, if unexplain ed might b e supporting evide n ce and that J13 an explanation, which cannot reasonably be true , is in this connection no explanation. Counsel further referred us to the statement tha t was made to PW7 by Eunice Chibesa while she was in hospital. In this regard , counsel cited the cases of The People v John Nguni6 and Sinyama v The People 7 , which dea lt with the circumstances in which eviden ce of a statement made by a p e rson who is n ot called a s a witness may be a dmitted as part of res gestae. In conclusion, it was submitted that the circumstantial evidence available to the court satisfied the test laid down in the case of David Zulu v The People 3 . Reference was also made to the case of Bwanausi v The People8 where it was held that w h ere a con clusion is based purely on infe ren ce, that inference m ay be drawn if it is the only reasonable inferen ce on the evide n ce. We h ave carefully considered the eviden ce on record, the judgment appealed against and the arguments by counsel on both sides. As submitted by the learned State Advocate, the question the court below h a d to d etermine was who set fire t o the house in which the five d eceased p ersons were sleeping? Jl4 In ground 1, the appellant is contending that th e court below erred when it accepted PW6 's evidence th at he confessed to h aving set fire to the house resulting in the death of Robinson Chibesa and his fa m ily. We have perused the record of proceedings in the court below, partic u larly at pages 75 to 79. We have seen the questions put to the appellant in cross-examination regarding the evidence of PW6 and his reply thereto. Th e relevant part of the record reads: Q. Witness, just confirm to the court that you were d e tained at Samfy a Police? A. Yes my Lady. Q. Confirm to the court again that it was around 19:30 thereabout when you were detained on the 23rd? A. Yes my Lady. Q . Witness just also confirm that the evide nce that PW6 was givi ng in court is true ? A. It was true my Lady. It is true from the above p assage that PW6 was not mentioned by name during the cross-examination of the appellant. However, this aspect of the m a tter was not an issue in the court below. As submitted by the State Advocate, counsel throughout the t rial re presented the appellant. If counsel thought the question put to his client was broad and general or if the appellant did not know whom PW6 was, counsel ought to h ave obj ected but h e did not. JlS It was also the duty of d efen ce counsel to clarify issu es raised in cross-examination , when r e-examining the a ppellant. The fact that h e did not, m eant that the a ppellant unde rs tood the questions put to him and confirmed as true what PW6 had said in court. Furthe r , the fact that PW6 did not see the face of th e young man from Ng'umbo who confessed to the crime wa s n ot in dispute. Again as submitted by the respondent and as put by Doyle, J. A. in h is obiter r e m a rks in the case of Mwiya and Ikweti v The People 4 , the issue of whether or n ot the app ellant made a 'confession ' in the police cells, was a question of fac t . It was open to the appellant t o d eny tha t h e m a d e the statem ent allude d to by PW6 but he did not, despite tha t h e was legally represented. In addition , the contention by the a ppellant that PW6 did not t ell the cou r t wh ere the three p eople h e found in the police cells came from, or why th ey we re d etained and the argument that PW6 did not produce the receipt h e wa s give n after h e paid the amount h e was ch arged were not in issue in this case. Wha t is more, it was neve r disputed by the d efence that PW6 was d etained in th e police cells on 23rd Decemb er , 2 014 or that h e h eard the n arration by the you ng man from Ng'umbo though h e did not see his face . • J16 The court below analysed the evidence before it and found no motive for PW6 to concoct a story merely to implicate the appellant, with whom he had not differed. In contrast, the court found that the appellant admitted the evidence of PW6 which was unchallenged. In the event, we find no basis on which to upset the findings of fact and the conclusions made by the court below which gave cogent reasons for believing the evidence of PW6 and finding that the person who confessed to the crime was the appellant who came from Samfya. Therefore, we find no merit in ground l. In ground 2, the grievance by the appellant is that the court should not have held that the only reasonable inference that could be drawn from the circumstances was that he set fire to the house. We have perused the case of Nondo v Dire ctor of Public Prosecutions2 . In that case, the appellant was convicted of arson. He had quarreled with his father-in-law when the latter r e turned his wife's dowry and told him that the marriage was end ed. The appellant got angry and threatened to burn down his father-in-law's house. That evening the father-in-law's house caught fire and the evidence, which , the court accepted was that the appellant, was seen standing n ear the house some twenty paces away and when a .. J17 shout was raised , he ran away. The Court of Appeal emphasised that when the prosecution fails to put forward eyewitness proof to the effect that the accused set the fire in question, it must disprove "any possibility'' of accidental fire. In this case, there was no eyewitness proof to the effect that the appellant set the fire to the house. There was also evidence that the house was not electrified and that the family was using firewood as a source of light. Nonetheless, the current case is distinguishable from the above quoted case because here there was the unchallenged evidence of PW6, which we have alluded to, which the court accepted and the numerous 'odd coincidences' which supported PW6's evidence of the appellant's 'confession ' in the cells. We agree with the court b elow tha t, there was strong circumstantial evidence, that the house was set on fire from outside, whilst the deceased were asleep inside. The possibility of accidental fire was disproved and there can b e no doubt that the act of setting fire to the house was intentional and malicious . There was no n eed for the court, to refer even, to the statement m ade by Eunice Chibesa to PW7. The circumsta ntial evidence on record could lead only to a n inferen ce of guilt. Ground 2 must also fail. J18 As to the a ppeal against sentence, the a ppella nt killed an entire family, all b ecause of a quarrel he h a d with Robinson Chibesa, which h e in fact provoked. He deserved the d eath penalty and h e does not deserve parole or p a rdon. The a ppeal fails on both conviction and sentence and we dismiss it. :--: , . . 7 . 1.--- ( . . ' E . M HAMAUNDU SUPREME COURT JUDGE - ~}.. c:~<~ R . M:t. KAOMA SUPREME COURT JUDGE C~GA SUPREME COURT JUDGE