Whiteson Sichone and Ors v People (Appeal 58 of 2018) [2019] ZMSC 287 (19 August 2019)

J1 Selected Judgment No.25 of 2019 P.789 APPEAL NO. 58,59,60,61,62/2018 IN THE SUPREME COURT OF ZAMBIA HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: WHITESON SICHONE GIFT KALUMENDO PAUL SICHULA MANJA SAMSON MIRACLE CHIBESA V THE PEOPLE 1st APPELLANT 2nd APPELLANT 3rd APPELLANT 4th APPELLANT 5th APPELLANT RESPONDENT Coram: Muyovwe, Hamaundu, and Chinyama, JJS On 13th August, 2019 and 19th August, 2019 For the Appellants : Mr K. Katazo, Senior Legal Aid Counsel For the State : Mrs G. Mulenga, Principal State Advocate JUDGMENT HAMAUNDU, JS, delivered the Judgment of the Court Cases referred to: 1. Tembo v The People, Appeal No. 56 of 2006 (unreported) 2. Kashiba v The People (19710 ZR 95 I J2 3. Hamfuti v The People (19720 ZR 240 4. Nalumino v The People (1986) ZR 102 P.790 Works referred to: Magistrates Handbook; E. J. Swarbrick; 6th (1991) edition; Judiciary, Lusaka, 1993 The appellants appeal against their conviction by the High Court, Sikazwe, J, on four counts of armed aggravated robbery. The appellants and one Boniface Mwila Sanaje were charged with the four counts of armed aggravated robbery before the High Court sitting at Kabwe on 6th May, 2013. The first three counts involved thefts against employees of Lake PetroIleum Filling Station named Nsofwa Kalonde, Enock Lwambula and Pethius Mwaluputa. The items stolen from them were a Techno cell phone each from Nsofwa Kalonde and Enock Lwambula, and a pair of shoes from Pethias Mwaluputa. The fourth count involved theft of a sum of slightly over K40million (unrebased) from Lake PetroIleum Filling Station. We must state that the said Boniface Mwila Sanaje died before the prosecution closed its case. The court below, however, J 3 P.791 put him on his defence and eventually acquitted him posthumously. That was a wrong approach. The correct approach was for the prosecution to enter a nolle prosequi in respect of Boniface Mwila Sanaje, in line with what we said in the unreported case of Tembo v The People, Appeal No. 56 of 2006. We commented therein that whereas our Criminal Procedure Code provides for abating of proceedings when an appellant dies, it is silent on the death of an accused person. We then said that the only provision under which a charge against a deceased accused can “abate” is by invoking the provisions of Section 181 of the Criminal Procedure Code, that is, a nolle prosequi must formally be entered against him. The story presented to the court below by the prosecution, through the testimony of their witnesses is this: On the 8th August, 2012, employees Kalonde Nsofwa (PW1), Enock Lwambula (PW2), Pethius Mwaluputa (PW3) and their supervisor Haswell Mwale (PW4) were on night shift duty at the filling station. Also present were two guards, Miracle Chibesa, the I J4 P.792 5th appellant, and his colleague named Michael. Around midnight some robbers stormed the premises covered with headsocks. They forced everyone to lie on the floor. They broke the grill door to the office where the safe was. Failing to locate the safe, they dragged the supervisor Haswell Mwale to the office who showed it to them. They took the sum of K40,780,000.00 cash (unrebased). During the robbery the robbers fired a gunshot. They searched the employees and took the items stated in the counts. The robbers then fled, leaving a gun bag behind. The employees went to report the robbery at Kapiri Mposhi Police Station. Investigations began. In the meantime, in the month of September, 2012, after the 24th, the 2nd appellant sold a cell phone, whose make was Techno, to Shadrick Lipempesha (PW6), of Kapiri Mposhi. That phone was the one which the robbers had stolen from Kalonde Nsofwa on the night of the robbery. What gave the police a break in the case were the activities on the two Techno phones that were stolen from Kalonde Nsofwa and Enock Lwambula. The report from the service provider MTN on the J5 P.793 activities led to the apprehension of Whiteson Sichone, the 1st appellant. A pandora’s box was then opened; for the 1st appellant not only admitted having taken part in the robbery but also revealed who his accomplices were. The 1st appellant implicated the 2nd appellant whom the 1st appellant alleged to have been the one who was carrying the gun. The 1st appellant also implicated Miracle Chibesa, the 5th appellant, who was also one of the two guards at the Filling Station when the robbers attacked. The 1st appellant then implicated Samson Manja, the 4th appellant and Paul Sichula, the 3rd appellant. All these suspects were rounded up and placed in custody. On being interviewed, the 2nd appellant admitted that he was the one who carried the gun on the fateful night and that he had hired it from Boniface Mwila Sanaje, who was also apprehended and later became the sixth accused. The 2nd appellant led the police to the b^ck of his house where he had buried the gun. The 2nd appellant then led the police to Shadrick Lipempesha whom he had I sold the phone stolen from Kalonde Nsofwa. The 3rd appellant, upon J 6 P.794 being apprehended was found with a phone which had been stolen from Enock Lwambula. A headsock, similar to the ones which the robbers had been wearing on the fateful night, was recovered from the 4th appellant’s house, among his clothes. As for the 5th appellant Miracle Chibesa, it was found that on the day of the robbery he had reported his phone as being among the items that the robbers took but upon being apprehended, he told the police that he had sold it to a passerby shortly after the robbery. Further, he told the police that from his share of the money he bought some trousers, a shirt and a solar panel. While they were in custody, all the appellants led the police to the scene of crime where they demonstrated their respective roles; and to the uncompleted house from where they had shared the money. The appellants were then charged for the subject offences. We | should point out here that the testimony tending to prove the robbery was from the employees of the filling station. However, J 7 P.795 the testimony that tended to link the appellants to the case was from only one witness, the arresting officer (PW8) who was allowed, without following the proper procedure of introducing confession statements in evidence, to divulge what he alleged to have been confessions made to him by all the appellants. In his defence, the 1st appellant denied having confessed to the police as presented by the testimony of the prosecution. His story instead was that on the 8th August, 2012, the day when the robbery took place, he was not in Kapiri Mposhi. He was at a funeral in Vwawa, Tanzania, where he had gone to bury his uncle. According to his story, the appellant left Tanzania, coming back to Zambia, on 12th August, 2012. On the way the battery in his phone became flat, so he borrowed a phone from one of the passengers and placed his sim card therein so that he could call his wife. On 22nd October, 2012 the police phoned on his number and asked to meet him. When he met the caller, he was apprehended. When he was asked about the phone that he had used some days back, he led them to the place where the owner of that phone traded. After giving them J8 P.796 the description, the police went and apprehended that person, who turned out to be the 3rd appellant. The 2nd appellant, too, denied ever confessing to the police. His story was this: That on 20th August, 2012, he went into town in Kapiri Mposhi to buy himself a phone. He bought the Techno phone which later became the subject of this case. He started using the phone on 21st August, 2012. At the end of August, 2012, his nephew died. Having no money to take the funeral to Solwezi, he sold his wife’s phone, a nokia, to Shadreck Lipempesha. The latter returned the phone, saying that it was not functioning well. The 2nd appellant then gave Shadreck Lipempesha the Techno phone. On 22nd October, 2012 the police came to his home, saying that his phone number was reflecting on a phone which they were looking for. At that time, he was making a wooden gun-butt for a customer named Boniface Mwila Sanaje. When they saw the gun-butt, the police called him a thief. He was detained. Then he took them to the person who had sold him the phone. The police detained that person as well. He also took the police to the owner of the gun, who J 9 P.797 confirmed that it was his and he showed them its papers. The police detained him too. Then the police accused them of having taken part in the robbery at the filling station. Paul Sichula, the 3rd appellant, supported the 1st appellant in the story that they had travelled together from Nakonde, during which journey the 1st appellant had borrowed the 3rd appellant’s phone, put in his sim card and used it briefly to phone his wife. As for the phone itself, the 3rd appellant explained that he had bought it from some people; and that in the process of the sale, he had asked Samson Manja, the 4th appellant, who was a fellow businessman at the trading area, for some change. He said that when the police came for him on 22nd October, 2012, he mentioned the 4th appellant as the only person who could support his story that he had bought the phone from some people: but, that, instead, the police apprehended the 4th appellant as well. Samson Manja, the 4th appellant, said that on 22nd October, 2012, the police apprehended him at Tazara railway station in I Kapiri Mposhi. They took him to the police station where they J 10 P.798 brought the 3rd appellant to him. The 3rd appellant told the police that the 4th appellant was indeed the one from whom he had obtained change. Samson Manja confirmed that position; and he even told the police that he saw the people from whom the 3rd appellant had bought the phone. He said that the police then took him to his home where they searched the house: and that they found nothing, but they took some of his cothes. Miracle Chibesa, the 5th appellant, told the court that he was one of the victims of the robbery on the fateful evening. He said that he was, however, apprehended by the police on 22nd October, 2012. The next day, they brought to him Gift Kalumendo (the 2nd appellant) and asked him if he knew Gift Kalumendo. He denied knowing him. The following day, he led the police to his house so that they could search it. There, the police collected a solar panel, a shirt, a pair of jeans and a T-shirt which they alleged that he had bought using the stolen money. I The court below found as a fact, on the testimonies of PW1 Kalonde Nsofwa, PW2 Enock Lwambula, PW3 Pethias Mwaluputa, J11 P.799 and PW4 Haswell Mwale that a robbery did take place at Lake Petroleum Filling Station on the night of 8th August, 2012; and that during the robbery the sum of money, the Techno phones and the shoes were stolen. As regards the identity of the robbers, the learned judge held that the 1st appellant was linked to the offence by the activity reports on the two stolen phones and also by the testimony of the arresting officer which outlined details of the 1st appellant’s confession to the police. With regard to the 2nd appellant, the learned judge held that he was linked to the offence again by the testimony of the arresting officer which had alleged that the 1st appellant in his confession had stated that he had passed on the stolen Techno phone to the 2nd appellant. According to the judge, the arresting officer went on to state that, when interviewed, the 2nd appellant for his part confessed that he sold the Tecno phone to Shadrick Lipempesha; and that he had received a shotgun from the 6th accused for repair of a gun-butt; and finally, that he had admitted to having been the J 12 P.800 one who fired the grin at the filling station during the night of the robbery. The learned judge found that the 3rd appellant was linked to the offence by the confession of the 1st appellant which was narrated by the arresting officer. As for the 4th appellant, the judge found that he was linked to the offence also by the testimony of the arresting officer who stated I that the 3rd appellant in confessing to having taken part in the robbery said that the 4th appellant took part as well. The judge also relied on the arresting officer’s testimony that the police found a headsoci at the 4th appellant’s house. Witri regard to the 5th appellant, the judge found that he was linked to the offence by the testimony of the arresting officer who had said that, in his confession, the 1st appellant had said that the I 5th appellant was part of the planning of the robbery. Sinpe the evidence linking the appellants was led only by the I arresting officer the judge noted that that witness had exhibited a demeanor of honesty, was calm and consistent in his testimony; J 13 P.801 and was never shaken in cross-examination. On the other hand, the court said that the appellants were prone to telling lies; their testimony was merely full of denials and lacked much substance. He found their testimony unreliable. Consequently, the judge convicted them of the offence and sentenced them to death. We can say right away that the approach adopted by the court below to treat the case from the point of view of a mere general issue of credibility of witnesses was wrong because the issues to be resolved involved not only facts but law as well. We shall demonstrate this point in detail in the course of the judgment. The appellants have come to this court on two grounds of appeal, couched as follows: 1. The trial court erred in law and in fact when it accepted PW8’s evidence that the 1st to 4th appellants confessed that they were the ones who robbed the Alling station without asking the defence if they were challenging that piece of evidence 2. The trial court erred in law and in fact when it convicted the 4th appellant based on a confession made to PW8 by the 3rd appellant without hi; adopting it. J 14 P.802 We observed that the two grounds of appeal appear to have omitted the 5th appellant. However, we take it that it was an accidental slip. We see that the second ground of appeal could apply to the 5th appellant as well. We shall, therefore, consider his appeal under that ground. The appellants’ argument in the first ground of appeal is expressed within the wording of the ground itself. In support of the argument, Mr Katazo, the learned Senior Legal Aid Counsel representing the appellants, cited a number of authorities on the point. We wish here to thank learned counsel for his industry in finding the authorities because they are indeed dead on point. We now review some of them. Starting with the earliest first, in the case of Kashiba v The People(2), the Court of Appeal (as this court was then called) held: “(i) It is the duty of the trial court in all cases, even if the question is not raised by the defence, to satisfy itself as to the admissibility of an incriminating statement. The court must satisfy itself, before evidence as to the content of the statement, that it was freely and voluntarily made, and where an accused is unrepresented, the court must take particular P.803 care that the accused is made fully aware of his rights and, if necessary, to test the evidence on this issue. (ii) whether or not an accused is represented, the record should state whether the allegedly free and voluntary character of a statement was challenged, the subsequent proceedings on the issue and the ruling of the court. These steps are not mere formalities; failure to take them is a serious irregularity which will lead to the setting aside of the conviction unless the appellate court is satisfied that, on the re: ainder of the evidence, the trial court must inevitably have come to the same conclusion.” Again in Hamfuti v The People(3), the Court of Appeal held: “whether or not an accused person is represented, a trial court should always, when the point at which a witness is about to depose as to the content of a statement, ask whether the defence has any objection to that evidence being led”. In l^alumino v The People(4) we held: “It is immaterial whether or not an accused is represented by counsel, the court must in all cases ask the defence whether they wish to object to the admission in evidence of a confession”. Mrs Mulenga, the learned Principal State Advocate representing the State, conceded the argument made by her colleagui. She argued, however, that when the inadmissible J 16 P.804 evidence of the arresting officer (PW8) is excluded, there remains, at least with regard to the 1st, 2nd and 3rd appellants, independent evidence that supports their conviction hence, the court below would have inevitably come to the same conclusion. She pointed out, for example, that all these three appellants were linked to the offence through the activity reports on the two stolen phones. She said also that, in the case of the 2nd appellant, there was the further evidence that he revealed the place where he had buried the gun, behind his house. I As for the 4th and 5th appellants, Mrs Mulenga submitted that the State did not support their conviction. We are in agreement with the argument by counsel for the appellant regarding the way the arresting officer was allowed to depose to what were essentially confessions or admissions on the part of all the five appellants, without establishing their voluntariness. We wish to state here that we have noted with concern the growing trend by judges and magistrates to casually I allow witnesses who are arresting officers, or other policemen who J 17 P.805 dealt with the case to simply delve into alleged admissions by accused | persons without any effort on the part of the court to establish the voluntariness of such alleged admissions. The decisions that we have quoted above are very clear: No admission should be devulged before its voluntariness has been established. This rule, of-course does not apply to civilian witnesses, or generally witnesses who are not persons in authority. The learned editor E. J. Swarbrick, in the sixth (1991) edition of the “Magistrate's Handbook" provides a practical guide to the proper introduction of a confession in evidence. The Magistrates Handbook is an invaluable companion not only to Magistrates, but judges and practitioners alike, as the erstwhile Chief Justice M. W. S. M Ngulube said in the preface to that edition of the said handbook. Indeed the practical guide given by E. J. Swarbrick is valuable to any adjudicator who is handling a criminal trial. Coming back to this case, the evidence of the arresting officer (PW8) was, in the main, based on the alleged admissions by all the I appellants. That evidence was placed on record without establishing J 18 | P.806 the voluntariness of the alleged admissions. In line with the above authorities, that evidence was inadmissible, and should, therefore, be excluded. Now since the alleged confession by the 3rd appellant which is complained of in the second ground of appeal in which the 4th appellant complains that the confession of the 3rd appellant was used to link him to the offence, was deposed to by the arresting officer (PW8), it follows that the exclusion of that particular evidence for being inadmissible has rendered the second ground of appeal redundant. Therefore, we shall now only examine whether the remainder of the evidence was sufficient to support the conviction of any or all of the appellants. We agree with learned counsel for the State that, as for the 1st, I 2nd and 3rd appellants, there was other evidence linking them to the offence. The 1st appellant for example was reflecting on the activity report of1 at least one phone: His sim card reflected on the second Techno phone belonging to Enock Lwambula. This is a fact which J 19 P.807 he acknowledged himself in his defence, though he said that he had merely temporarily borrowed it from the 3rd appellant. What supports the inference that the 1st appellant was among the robbers is an odd coincidence which the court below noted. This was that, although the 1st appellant had said that he had borrowed the phone from the 3rd appellant, who was a stranger to him then, when he was apprehended by the police, he led the police to the 3rd appellant; giving precise directions to the 3rd appellants shop at the junction of the road to Nakonde. Indeed, we, too, find this coincidence rather odd; and in our view raises the inference that the two knew each other very well. The 2nd appellant, Gift Kalumendo, acknowledged having had possession of the phone belonging to Kalonde Nsofwa (PW1). He led the police to Shadreck Lipempesha (PW6) to whom he had sold the phone. Further, he revealed to the police where he had buried the gun that was used during the robbery. Although the gun was found to be legitimately owned by Boniface Mwila Sanaje; and that the 2nd J 20 P.808 appellant claimed to have received it from him for the purpose of repairs, we find it odd that the 2nd appellant could then bury it. Paul Sichula, the 3rd appellant, was linked to the offence by the activity report on the phone belonging to Enock Lwambula. In fact, he was found in possession of it. His explanation of how he acquired the phone was not satisfactory. Then there was also the odd coincidence which the court below observed with regard to him and the 1st appellant which raised the inference that the two were not strangers, but knew each other very well. Samson Manja, the 4th appellant was linked to the offence because a search at his house revealed a head sock. That headsock was produced in court as exhibit PIO. Now his position needs to be examined carefully: First there had been an armed robbery in Kapiri Mposhi, in which the robbers wore headsocks to cover their faces. Secondly, the search at the 4th appellant’s house was not a mere general random search of people in Kapiri Mposhi so as to give room fori one to argue that a headsock could be owned by anybody: I Rather, the 4th appellant’s house was searched because, during the J 21 P.809 investigations into the said robbery, the 4th appellant was implicated; the nature or character of that implication is immaterial. Thirdly, upon the search of the house, the headsock was found, according to the arresting officer, “in his bedroom, mixed with other clothes"’. In other words, concealed among other clothes. Fourthly, in his defence, the 4th appellant said nothing about the headsock. Instead, he said that nothing incriminating was found, but that the police carried some of his clothes namely 3 shirts and an “addidas top”. Hence no explanation on the headsock was forthcoming from the 4th appellant: Indeed he was under no obligation to give any, but the finding of the headsock under these circumstances tended to show that the 4th appellant’s possession of it was not innocent: And so, this raised a very strong inference that he had participated in the robbery. As for the 5th appellant the only evidence which tended to link him to the robbery was the inadmissible testimony of the arresting I officer, purporting to depose to an alleged confession by the 5th appellant. None of the items that were produced in court were J 22 P.810 recovered from him. Even the solar panel and some clothes which the arresting officer mentioned in his inadmissible evidence were not produced. So when the inadmissible part of the testimony of the arresting officer is excluded, there is no other evidence linking the 5th appellant to the robbery. Since we have held that the inadmissible confessions introduced through the testimony of the arresting officer be excluded, there is nothing that remains standing to support the conviction of the 5th appellant. In conclusion, we hold that there is other evidence which supports the conviction of the 1st, 2nd, 3rd and 4th appellants. For them their appeals have no merit. We dismiss them. As for the 5th appellant, no other evidence supports his conviction. For him, his appeal has merit. We allow it, quash his conviction by the High Court and acquit him accordingly. E. N. C. Muyovwe SUPREME COURT JUDGE SUPREME COURT JUDGE SUPREME COURT JUDGE