Afilika Banda and Anor v People (SCZ APPEAL NO. 198, 199/2011) [2012] ZMSC 125 (5 June 2012)

IN THE SUPREME COURT FOR ZAMBIA HOLDEN AT NDOLA SCZ APPEAL NO. 198, 199/2011 (Appellate Jurisdiction) AFILIKA BANDA PENIAS NJOVU AND THE PEOPLE APPELLANT APPELLANT RESPONDENT CORAM: CHIBESAKUNDA, PHIRI AND MUSONDA, JJS. On 21 st March 2012 and on 5 th June 2012. For the Appellant: Mr. Z. Muzenga - Acting Principal State Advocate For the Respondent: Ms. N. C. Mumba - Assistant Senior State Advocate JUDGMENT Musonda, JS, delivered the Judgment of the Court. Cases Ref erred To: 1. Zyambo Vs The People (1997) ZR 154. 2. George Chileshe Vs The People (1977) ZR 76. 3. Yotam Manda Vs The People (1988/1989) ZR 130. 4. Elias Kunda Vs The People (ZR 82). 5. Mbuyi Jean Vs The People (1971) ZR 82. 6. Jonas Nkumbwa Vs The People (1983) ZR 103. 7. Nkata and Others Vs The Attorney General (1966) ZR 124. -Jl - " Legislation Referred To: Sections 294 and 200 of the Penal Code, Chapter 87 of the Laws of Zambia. The Appellants were charged and convicted of two counts, one of Aggravated Robbery Contrary to Section 294(1) and the other of Murder Contrary to Section 200 of the Penal Code. The two appellants were sentenced to 18 years imprisonment with hard labour on the first count and were sentenced to death on the second count. The case for the prosecution centred on the evidence of PW 1 to PWS. PW 1 was Sylvester Mulenga. He testified that on Saturday the 5 th of January 2008, in the morning his driver, Charles Ngambi collected his vehicle Registration Number ACH 6180 to go to work. e The driver did not return the vehicle on that day nor did he show up the following day. The driver was not found at his house. The driver's wife informed them that her husband did not return. Thereafter searches were conducted at police stations and hospitals, but there was no trace. -J2- ... " On Wednesday, 9 th January 2008, he received information that the police had picked a body in Twapia Compound. The body found at the hospital was that of his driver Charles Ngambi, who was in good health on 5 th January 2008, when he picked up the vehicle. On 10th January 2008, he received information from the police, that his vehicle had been found in Petauke. On 15th January 2008, he and the police proceeded to Petauke, where he identified the vehicle, though there was no number plate at the time. The vehicle was a Toyota Sprinter. However, when the vehicle was opened they found the number plates and licence disk in the vehicle. The prosecution's second witness was Christopher Ngambi, who was deceased's elder brother. He identified the body to a e doctor who conducted a postmortem examination at Ndola Central Hospital. The third prosecution witness, was detective constable Dennis Muchanka of Petauke Police Station. He testified that on 6 th January 2008, whilst on duty at Petauke Police Station, he received -J3- • information that two people were on the run and wanted for stock theft by the names of Afilika Banda and Penias Njovu (first and second appellant respectively), ~hat these 2 people had returned to Petauke and had in their possession a Toyota Sprinter Vantage Motor Vehicle. Acting on the information, they went to apprehend the two suspects in Chief Mumbi's area. They first apprehended the second appellant Penias Njovu in his house and found the vehicle parked outside his house. The second appellant led them to the first appellant on the other side of the river. They took the two suspects to Petauke Police Station together with the vehicle. The witness was not given a satisfactory explanation as to the ownership of the vehicle. When he searched the vehicle, he found number plates for ACH 6180, which matched the licence disk. The disk revealed the name and address in Ndola. He contacted Ndola Police who said the vehicle was subject of a robbery. On 15th January 2008, he took the suspects to Ndola and handed them to Detective Sergeant Zulu, together with the vehicle. The fourth prosecution witness was Detective Chief Inspector Jeremiah Mweetwa of Masala Police Station. He testified that on 6 th -J4- January 2008, he received information from officer-in-charge Twapia Police Station about a dead body near the road. He went to the scene and found the body of a man in the ditch. He retrieved the body with the help of Ndola Police. The body had a mark on the neck indicating that the person was tied with a rope and blood was coming from the mouth. The body was conveyed to Ndola Central Hospital Mortuary. On 9 th January 2008, he was approached by PW 1 Sylvester Mulenga, who enquired about the body. He told him where the body was. On 10th January 2008, PW1 told him that he had identified the body as that of his driver. The witness then instructed PW 5 to open a docket. The fifth prosecution witness was Detective Sergeant Samson Zulu of Ndola District Headquarters, Homicide Section. He testified that on 10th January 2008 whilst on duty he was assigned two dockets to investigate, one for aggravated robbery and the other for murder. Acting on the dockets he carried out investigations. Later he received information that a vehicle had been recovered in Petauke. Arrangements were made to convey the vehicle and the suspects found in possession of the vehicle to Ndola. He came to -JS- know the suspects as Afilika Banda and Penias Njovu, (the first and second appellant respectively). The witness interviewed the two suspects. The first appellant told him that he was given the vehicle by someone known as Patrick who he had met in a bar in Lusaka. The second appellant told him that he did not know anything about the transaction of the vehicle as the transaction was being done by Afilika Banda his elder brother. When he asked them who drove the vehicle from Lusaka to Petauke to Lusaka, the second appellant said he was the one driving. Both the first and second appellants said Patrick ran away when they were apprehended. In relation to the offence of murder he received a report from Dr. Petrenko who conducted a postmortem examination on deceased's body in presence of PW2 (elder brother). Under warn and caution in Nyanja both appellants denied the two charges. He identified the appellants as the persons he arrested. -J6- The first appellant in his defence testified that him, Sam and Moffat were in the business of selling beef at City Market. They transported beef from Petauke to Lusaka. On 2 nd January 2008, they made the first trip to Lusaka. He remained at the City Market, later followed Sam to Kaunda Square where he stayed. He was in a bar with his girlfriend when the second appellant phoned him, whom he had travelled with from Petauke. Later the second appellant joined the first appellant who was in a bar with his girlfriend. Later when first appellant and his girlfriend left the bar, the people who were with the second appellant offered them a lift as they were his home people, he refused and wanted to go by bus which was cheaper. In the course of discussion the person who offered them a lift told them his name was Patrick Phiri from Katete. Patrick Phiri said he was based in Kitwe, but had travelled to Lusaka to sell a vehicle . Patrick Phiri wondered whether there was anyone interested in buying a vehicle in Petauke. The first appellant asked if he could see the vehicle and was shown a vehicle written, 'for sale'. He liked the vehicle as it looked new and offered to buy it. -17- However, he told Patrick Phiri that he had no money in Lusaka, but in Petauke. The price was K14m, but Patrick refused to go to Petauke without being paid anything, he had to pay K2.5m. They subsequently left for Petauke at night. When they arrived in Petauke he informed his parents that he had come with a visitor. He prepared for Patrick Phiri at the second appellant's home , before he went to sleep at his wife's village. First appellant instructed e second appellant to get the vehicle keys as he had paid K2.5m. The following morning police went to his house and apprehended him. When he was taken in the vehicle he found his young brother. They were taken to the police station where they were told that, they had been apprehended for stock theft, but were later cleared of stock theft. Later they were informed that they had been apprehended in connection with the vehicle. The first appellant when he was apprehended told the police he wanted to buy the vehicle from Patrick Phiri, whom he had come with from Lusaka. The police however said, they were detaining them until Patrick Phiri returned. Patrick Phiri did not return. He was prepared to take the police to the room at the Guest House in -J8- .. Kaunda Square. The exercise book where he entered the payment of K2.5m to Patrick Phiri and where they signed and his K8m were taken by the police. The second appellant did not participate in the transaction to buy the vehicle, he was just encouraging him. The second appellant testified that on 2 nd January 2008, he went to the first appellant's house to ask for a lift to Lusaka where he wanted to go and obtain a driving licence. On 5 th January 2008 in the late afternoon they started from Petauke, arriving in Lusaka at 06:00 hours the following day. When they arrived he left his brother at City Market and went to Road Traffic where they issue licences. When he returned to the market, he found that his elder brother had left for Kaunda Square, where he subsequently met him. Later his brother called and told him that the person he was talking to was selling the vehicle. He led the police to his elder brother, who was apprehended and taken to the police. At the police station, they were interviewed about animals and were later cleared of stock theft. He was later taken to Ndola, where he has never been since birth as the vehicle came from there, and they did not know the vehicle was stolen. -J9- .. .,, In cross-examination the second appellant stated that he told the police where he was on 5 th January 2008 when he was charged. He did not know the residence of the person who sold the vehicle to his brother. He told the police that, he was in a position to take them to the room where the person was residing. He did not know PW3 before. The vehicle had registration number plates. PW3 was telling lies when he said the vehicle had no registration number plates. Under re-examination the second appellant said that PW3 could have told lies against him because he was not happy with the clearance of his elder brother. The learned trial judge considered the evidence and found it difficult to believe that the vehicle could have been offered to them by someone known as Patrick Phiri in a bar in a place known as Kaunda Square. The vehicle having been stolen on the 5 th January 2008, it was difficult also to believe that someone could be prepared to travel with complete strangers from Lusaka to Petauke with his vehicle. The learned trial Judge discounted the story that the appellants had travelled with Patrick Phiri to Petauke and was in the house in the village at the time of their apprehension. They -JIO- .. would have told the police or the second appellant would have led the police to Patrick Phiri, if it was true that the vehicle was offered to the first appellant by someone he came to know as Patrick Phiri. The first appellant was supposed to become suspicious upon noticing that the vehicle had no registration number. The learned trial Judge found that, that was a case of being found in possession of recently stolen property. The vehicle was stolen between 5 th January 2008 and 6 th January 2008. The appellants were found with the said stolen vehicle in Petauke on 7 th January 2008. The trial court referred to our decision 1n Zyambo Vs The Peoplef1J where we said: "An inference of guilt cannot be drawn from the possession of stolen property unless it is the only inference that can reasonably be drawn, where an innocent explanation might reasonably be true, a fortiori the inference of guilt is not the only reasonable inference" -Jll- The trial court further referred to our decision 1n George Chileshe Vs The People/21 where we said: "It is the duty of the trial court in cases where recent possession of stolen property may lead to the conviction of the accused, to consider whether such recent possession may be the result of the receiving of stolen property as opposed to guilt of the major crime during the commission of which the property was obtained" Lastly, the trial court referred to our decision 1n Yotam Manda Vs The People,(3l where we said that: "The trial court is under a duty to consider various alternative inferences which can be drawn when the only evidence against an accused person is that he was in possession of stolen property. Unless there is something in the evidence which positively excludes the less severe inferences against the accused person (such as that of receiving stolen property rather than guilt of a major case - such as -J12- aggravated robbery or murder) the court is bound to return a verdict in less severe cases" The learned trial Judge after considering our decisions on the subject came to the conclusion that time was too short for the vehicle to change hands. He found that the only reasonable inference in the circumstances was that the appellants were the perpetrators of the unlawful act, that they were the people who committed the aggravated robbery. He held that the appellants constricted the neck of the deceased causing violent asphyxia. The appellants had the intention to a cause to death or to do grievous body harm to the deceased within sub-section (a) of Section 204 of the Penal Code. He convicted the appellants of murder and aggravated robbery. Both counsel relied on the filed grounds of appeal. Mr. Muzenga, filed one ground of appeal. He argued that the learned trial Judge erred by convicting the appellant on circumstantial evidence, when the inference of guilt was not the only inference that -J13- could reasonably be drawn from the facts. While conceding that the appellants were found with recently stolen property, it was not clear from the record the exact date the appellants were found with the motor vehicle. The appellants gave consistent explanations at the police and during trial. The first appellant told the trial court that he got the vehicle from Patrick Phiri in Lusaka, who agreed to sell it at Kl4m and a part payment of K2.5m was paid and the balance was to be paid in Petauke. The second appellant told the trial court that he was not privy to the transaction, it was his elder brother (the first appellant) who was involved in the transaction. Mr. Muzenga argued, following our decision in Elias Kunda Vs The People,(4 ) where we said: "In cases where guilt is found by inference, as for instance where the doctrine of recent possession is applied, there cannot be conviction if an explanation given by accused either at an earlier stage (such as the police) or during the trial, might reasonably be true" -J1 4- .. He buttressed his argument with our predecessor's decision (the Court of Appeal) in Mbuyi Jean Vs The People,(5 ) where they held that: "The correct direction for the Magistrate to give himself in such cases is: if accused was found in possession of property recently stolen and guilty knowledge may be inferred if the Court is satisfied that the explanation given to account for his possession is untrue. The Court cannot be so satisfied if the explanation is one which might reasonably be true if the Court does not believe it" In response to the sole ground, Ms. Mumba submitted that the learned trial Judge was on firm ground when he convicted the appellants on circumstantial evidence as an inference of guilt was e the only inference that could reasonably be drawn from the facts. The appellants were found with vehicle only about 3 days had passed, hence the conviction by applying the Doctrine of Recent Possession was competent. She cited the case of Jonas Nkumbwa Vs The People,(6 ) where we said: -Jl5- "Possession of stolen property simpliciter does not inevitably lead to an inference that the appellant participated in the robbery, unless possession is so recent that there could have been no opportunity for the transfer of the property from another person into the appellant's hands" It was her submission that the trial court in this case had applied itself to the requirement as laid down in Nkumbwa supra and made a finding at page 101 of the record. The trial court in its judgment considered whether the appellants could be convicted of a lesser offence and found that the only inference that could be drawn from the facts, was that the two appellants were the perpetrators of the offence. We have carefully considered ground one of the appeal. In this ground, Mr. Muzenga attacks the learned trial Judge's finding of fact by the learned Judge's failure to believe the appellants. We note at page 14, lines 22 - 23, the first appellant said, "since Patrick Phiri refused to go to Petauke without being paid anything, he had to pay him K2.5m". The second appellant at page 97, lines 8 - 9 -Jl6- said, "when they reached a filling station at Chongwe, his elder brother gave the person K2.5m". This was a contradiction. The first appellant said it was a condition precedent that some money be paid, before they could start off, for Petauke, while the second appellant said, they had started off travelled up to Chongwe a distance of about 60 kms, that is when the deposit was paid. We say this in order to illustrate that the finding of facts were e warranted by the evidence on record and the credibility of the witnesses. We have said time and again for example in Nkhata and Others Vs The Attorney General(7l, "that we can only interfere with the findings of the trial court on ground that, in assessing and evaluating the evidence, the trial court failed to take into account the appellants' evidence". The other aspect of this ground was that the circumstantial evidence available before the learned trial Judge could not only lead to one reasonable inference. We note that the learned trial Judge warned himself, that he had to consider various alternative inferences and cited the case of Yotam Manda Vs The People supra. He considered the item in question and the period as -Jl 7- ,.. • submitted by Ms. Mumba, the possibility that there could have been no opportunity for the transfer of the property from another person into the appellants' hands. This was motor vehicle stolen close to a thousand kilometers away, three days earlier, found on the appellants without number plates. The two appellants testified that Patrick Phiri was the owner and they went with him to Petauke and was lodging with one of them, but when apprehended this Patrick Phiri mysteriously disappears. We are of the view that the learned trial Judge correctly assessed the evidence and came to the inevitable conclusion he did. The sole ground of appeal is dismissed. The result is that both convictions for murder and aggravated robber are affirmed. L. P. Chibesakunda SUPREME COURT JUDGE ············"~····· ··········· ~ G. S. Phiri SUPREME COURT JUDGE P. Musonda SUPREME COURT JUDGE -J18-