Sailus Amponda v The People (APPEAL NO. 37/2021) [2024] ZMCA 216 (27 February 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 37 /202 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: ,coF ZA -rOF APP£A SAILUS AMPONDA 2 7 FEB 2021t APPELLANT AND THE PEOPLE RESPONDEN1 CORAM: NGULUBE, MUZENGA AND CHEMBE, JJA. On 21 st February, 2024 and 27th February, 2024. For the Appellant: Mr. P. Chavula - Deputy Chief Legal Aid Counsel, Legal Aid Board, appearing on behalf Messrs. Hatimbula Leg Practitioners. For the Respondent: Ms. S. Muwamba-Deputy Chief State Advocate, Natio1 Prosecutions Authority JUDGMENT NGULUBE, JA delivered the Judgment of the Court. Cases referred to: 1. David Zulu vs The People (1977) Z. R. 151 (S. C.) 2. Malambo Choka vs The People (1978) Z. R. 243 3. Sankombe vs The People (1977) Z. R. 127 5. Kapa vs The People - SCZ Appeal No. 79/2017 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The appellant appeared before the High Court (Chilombo-Ma1. J.) , on an information containing one count of the offence murder contrary to Section 200 of the Penal Code, Chapt 87 of the Laws of Zambia. 1. 2 The particulars of the offence are that on an unknown date b between 29 th June 2021 and 30 th June , 2021 at Monze , t appellant murdered Mawaza Mponda (hereinafter called t deceased). 1.3 He denied the charge and the matter proceeded to trial. At t end of the trial, the appellant was convicted and condemned suffer capital punishment. 1.4 He has appealed against conviction and sentence. 2.0 CASE BEFORE THE TRIAL COURT 2.1 The appellant's conviction was secured by the evidence of sevc prosecution witnesses. A summary of the evidence relevant this appeal, was that on 28 th June, 2021 the deceased (tl appellant's son) and his cousin Mushili, stole motor vehic parts, which included an oil pump, from PW2's house. After tl deceased denied having taken the oil pump, PW2 phoned tl appellant and informed him about the stolen parts. 2. 2 The deceased offered to lead PW2 to PW 1 's house where tl deceased sold the car parts on 29 th June, 2021. The mot vehicle parts were retrieved but the oil pump was not found. T deceased later revealed that the oil pump was taken by 1 cousin. 2. 3 As PW2 and the deceased returned from PW l's house, they s, the appellant who was visibly infuriated, standing about sev, metres away from them. The deceased was frightened and r, away. That after inquiring about the trip to PWl 's house, t appellant whipped the deceased's cousin with a chain. T accused requested to be taken to PW l's house and the iss was settled after PW2 was paid the sum of K3, 000. 00 for tl missing oil pump. 2.4 According to PW3's evidence, she and a named friend we returning from a bar on the night of 29 th June, 2021 arour 23:30 hours, when they saw the appellant striking the deceas1 with a chain. They were able to recognise the appellant as l wore black clothes which he also wore at the deceased's buri, She stated that the appellant also wore an earring. That shew; able to see the appellant on the material day because he lit l: phone and the place where he struck the deceased was lit 1 lights from the streets. PW3's evidence was that she and h named friend followed the appellant as he carried the deceas1 on his shoulder to the place where the deceased's body w. found. PW3 later came to learn that the deceased was fou1 dead in one of the appellant's three rooms. 2. 5 According to the evidence of PW 4, he was detained in the poli cells where the appellant was detained for the subject offenc PW4 stated that the appellant told him that he had killed 1 child (the deceased) because he stole from PW2 who was loggerheads with the appellant. That the conversation that PV had with the appellant was recorded on PW7's phone which w: later stolen. 2.6 There was also evidence from PWS (the appellant's tenant) th the appellant evicted him from the house in June 2021 arour 01 : 00 to 02: 00 hours on allegations of being a cadre of a nami political party. That when the appellant confronted him, ] struck him with a machete on the back of his neck. 2. 7 On 1st July, 2021, the deceased body was found hanging in t] appellant's unoccupied shop with a rope tied to his neck. Tl deceased had grass on one of his shoulders and had a cut< the forehead. His legs rested on the shelves which were in tl shop. 2.8 A postmortem conducted on 3 rd July, 2021 attributed his dea to severe head, neck and chest injuries due to a blunt traum: 2.9 In his defence, the appellant stated that PW2 informed hi about the stolen motor vehicle parts. That when PW2 indicat that the deceased and his cousin would take him to the pla where they sold the motor parts, the appellant told him tow, for him owing to PW2's angry temperament the last time similar incident occurred. The appellant admitted that t deceased ran away upon heanng his voice when he return< from PWl 's place but he denied having struck Mushili with chain. He stated that he and PW2 had returned to PW 1 's hou where the sum of K3 ,000 .00 was paid for the missing oil pum When he returned home around 19:00 hours , he found that tl deceased had not returned home. 2 . 10 The appellant stated that he was at a funeral on the materi day on 28 th June , 2021 from 08:00 hours until the following d: around 05:00 hours. He had no chain when he left home a. I the said chain was used to lock the door to his house . 2.11 The appellant called DW2 as his witness. The witness confirm1 that the appellant attended his uncle's funeral and stayed at tl funeral house on the material day until the fallowing mornir According to the witness , he instructed his nephew to drive t appellant home around 04:00 hours. DW3 who was t appellant's nephew stated that he left the deceased at PW~ house and he never saw the deceased until his body w discovered on 1st July, 2021. 3.0 FINDINGS AND DECISION OF THE LOWER COURT 3. 1 After reviewing the evidence, the lower Court found that tl deceased's death was caused by the appellant. The lower Co-L found that it was not in dispute that the deceased and 1 cousin took the missing oil pump from PW2's house wl informed the appellant about it. The missing oil pump w never found but PWl paid PW2 for the missing oil pump. T lower Court also found that it was not in dispute that t: deceased ran away upon seeing the appellant and was ne-v seen again until his body was discovered. The lower CoL further found that the deceased's body was found hanging or rope that belonged to PW2 and which was used by t community to draw water from his well. 3.2 The lower Court found that the prosecution's evidence w anchored on direct evidence from PW3, circumstantial eviden and excuria confession by the appellant as shown from PWl evidence. The lower Court found further that the circumstant evidence was cogent and had taken the case out of the realm conjecture such that there was only an inference of guilt tt r.m1lrl hP rlr::lwn 4.0 THE APPEAL 4.1 Disenchanted with the judgment of the lower Court, tl appellant appealed to this Court against conviction ar sentence, fronting the following seven grounds of appeal- 1. The learned trial judge erred in law and fact wh• she convicted the appellant on circumstanti evidence which never went beyond the realm conjecture; 2. The learned trial judge erred in law and fact wh4 she convicted the appellant on the witness who he an interest to serve; 3. The learned trial judge erred in law and fact wh, she convicted the appellant on the evidence of suspe witnesses, which was not corroborated independent witnesses; 4. The learned trial judge erred in law and fact wfo she failed to take judicial notice that in June 202 bars were not operating; 5. The learned trial judge erred in law and fact wh, she did not take cognisant of the fact that t, deceased was last seen with PW2 on 28th June, 202 6. The learned trial judge erred in law and fact wh, she never took into account the Alibi evidence on 2! June 2021 by the appellant which was challenged; 7. Ttte tearnea trtat Juage erred. to sentence tll appellant to death when the evidence does nc support the conviction. 5.0 HEADS OF ARGUMENT 5.1 Both parties filed heads of argument which were entirely relie on at the hearing. The gist of the appellant's arguments j support of grounds one and five, was that the appellant conviction was based on circumstantial evidence which neede to go beyond the realm of conjecture as enunciated in the caf of David Zulu vs The People. 1 5. 2 It was accordingly argued that the lower Court wrongly drew a inference of guilt to convict the appellant because DW3 last sa the deceased at PW2's house and the appellant last saw tr deceased on 28 th June, 2021. It was argued further that thei was no forensic analysis conducted on the deceased's clothes< the appellant's clothes for traces of blood. 5.3 In support of grounds two and three, it was contended that P~ and PW5 were witnesses with an interest to serve and so the evidence needed to be corroborated as held in the case Malambo Choka vs The People. 2 It was submitted that P\\ ta th erect . PW :.:5 's child whlle . PW~ was unceremon1ous1y ev1cn by the appellant on the premise of insulting and urinatir anyhow when he was drunk. It was submitted further that tl conviction of the appellant on the basis of PW2's evidence w: unsafe because he was a suspect witness who was last set with the deceased. 5.4 In support of ground four of the appeal, it was contended th the lower Court ought to have taken judicial notice of the fa that bars were closed in June 2021 during the Covid- : pandemic. Reference was made to the case of Sankombe vs Tl People3 to support this proposition. 5.5 In support of ground six, it was submitted that the appella could not have murdered the deceased because he was at funeral on 29 th June , 2021. 5.6 On behalf of the respondent , learned Counsel supported t conviction and sentence of the appellant for the offence murder. The gist of Counsel's arguments is that there w sufficient evidence to support the appellant's conviction beyoi reasonable doubt as enunciated in the case of Mwewa Muro; vs The People. 4 0., n was suom1uea 1nal rw 0 1esunea nav1ng wnnessea 1n appellant striking the deceased on the ground and trailed hir to the room where the deceased's body was found. With regar to the argument that PW3 's evidence was false because bar were restricted from operating during the material time whic was the period of the Covid-19 pandemic, it was argued the there were a number of bars that were operating illegally. 5.8 It was contended that the circumstantial evidence was cager and had taken the case out of the realm of conjecture. That th only inference that could be drawn was that the appellar murdered the deceased. 5.9 Lastly, it was submitted that the case was proved beyon reasonable doubt because the prosecution also relied on tb extra judicial confession made by the appellant to PW4. 6.0 CONSIDERATION AND DECISION OF THE COURT 6 . 1 We have prudently considered the evidence on record, tb parties' arguments and the judgment appealed against. We wi address grounds one, two three , four , five and seven collective] as they are closely interlinked. Then we will address ground s i separately. o. L, 1 ne 1ss ue raisea 1n grounas one, nve ana seven 1s Ina[ u evidence does not support a conviction because tl circumstantial evidence did not take the case out of the real of conjecture. The circumstantial evidence which has be~ challenged by the appellant is that the lower Court did n consider the evidence that the deceased was last seen with P"' on 28 th June, 2021. Further that the lower Court failed to ta1 into account that the rope which was found around tl deceased's neck belonged to PW2. We hasten to mention th there was evidence before the lower Court that the rope whic was found around the deceased's neck was for PW2's well whe the community used to draw water. It is therefore possible £ anyone in the community to have accessed the rope, includi1 the appellant himself. 6 .3 We take cognisant of the fact that this case was not entire anchored on circumstantial evidence. In considering th appeal, we are mandated to look at the totality of the evidenc The evidence of the prosecution in the Court below which link< the appellant to the commission of the offence was adduced 1 PW3 and PW4. According to PW3, she was returning from ab w1u1 a narneu 1nenu un Lne maLena.1 uay aruunu L;0 :0v nuui when she saw the appellant striking a person who appeared ' be lying on the ground with a chain. She stated that th< followed him as he carried the person he assaulted on h shoulder until he put him in one of the rooms opposite h house where the deceased's body was found. 6.4 According to PW4 , he met the appellant in the police cells ar the appellant confessed to killing his child (the deceased). 6.5 The appellant faulted the evidence of PW3 in ground four of tl appeal on the basis that the lower Court failed to take judici notice of the fact that bars were not operating in June, 202 owing to the Covid-19 pandemic restrictions and therefo PW3's story could have been false. 6. 6 It is a notorious fact that there were restrictions on operati1 bars and nightclubs during the Covid- 19 pandemic. However, does not follow that bars and nightclubs were not operati1 illegally. It is a fact that some bar owners flouted Covid-: directives with impunity during the Covid- 19 pandemic. V cannot therefore accept the appellant's contention that PW~ evidence was false on that basis only. v . , .1. · u..1.1...1..1.\.,.1., .1.1.. wa..;::, \.,VJ..1.1.. c:; 1.1.uc:;u 1.,1.1.a. L rvvv wa.;::, a. WJ. LJ. J.c:;;::,;::, WJ. LJ. J. a interest to serve because PW2, who was detained in connectio with this offence was the father of her child. With regard to tr evidence of PW3, the lower Court noted that PW3 phoned tr police to report what she had seen on the material day bef01 PW2 and the appellant were apprehended in connection wit the subject offence. That therefore , the assertion that PW3 carr up with the story to protect PW2 did not arise . That in any even the prosecution did not adduce any evidence to prove that PW fathered PW3's child. We do not fault this finding by the low< Court. 6.8 It was further contended by the appellant that there was discrepancy in the evidence of PW 4 and PW7. While PW 4 statt that the appellant's confession was recorded on a Samsur phone, PW7 stated that it was an Infinix phone. The prosecutic did not produce the evidence of the alleged recording. Howeve the lower Court found that PW4 did not know the appellant ar therefore he had no reason to fabricate a story against him. 6.9 We concur with the lower Court's finding that there was indee: no motive for PW4 to falsely implicate the appellant. In the ca: u1 .n.opa vs .1. ne reop1.e," Lne ;::,upreu1e vuu1 L u1 L;cu.11u1a. 11, occasion to deal with a matter in which the appellant made confession in the cells. The prosecution witness did not see tl appellant's face but heard his narration. The Court concurn that the lower Court scrutinized the evidence before it and fou1 that there was no motive for the witness to concoct a sto merely to implicate the appellant who he had not differed wit] 6. 10 We therefore have no difficulty in finding that PW 4 was not person in authority, and the confession having been freely ma1 in the absence of evidence to the contrary, it formed part oft evidence that tied the case against the appellant together. It in this vein that grounds one, two, three, four, five and sev1 fail. 6.11 It was contended in ground six that the lower Court never to, into account the appellant's alibi that he was at a funeral 1 29th June, 2021. In the face of the evidence on record, we , not find the appellant's alibi to be credible. We say so becau while the appellant's witness (DW2) stated that he instruct his nephew to drive the appellant home from the funeral, t appellant did not make mention that DW2's nephew drove h llUlHC:. VY c; HllU lL UUU Lllct. L LllC: d_l. J}JC:lla.llL WUUlU UllllL ~UL important information which would have confirmed h: whereabouts and possibly exonerated him. This goes to sho that the alibi was an afterthought. Ground six therefore al~ fails. 7.0 CONCLUSION 7 . 1 In view of the foregoing, we find no merit in the appeal and it accordingly dismissed. The conviction and sentence of the low1 Court are upheld. P. C . M. NGULUBE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE Y. CHEMBE