Mwenda v People (Appeal 138 of 2017) [2018] ZMCA 379 (29 March 2018)

IN THE COURT OF APPEAL FOR ZAMBIA APPEAL NO. 138/2017 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: ALEX MWENDA THE PEOPLE Coram: C. K. Makungu, J. Chashi, M. M. Kondolo. S. C. J. J. A On 12th September, 2017 and 29th March, 2018 For the Appellant: Miss. G. N. Mukulwamutiyo - Senior Legal Aid Counsel of For the Respondent: Mrs. A. Mwanza - State Advocate of National Prosecution Legal Aid Board Authority JUDGMENT MAKUNGU, JA delivered the Judgment of the Court. Cases referred to: 1. The Minister of Home Affairs, The Attorney General v. Lee Habasonda (Suing on his own behalf and on behalf of the Southern African Center for the Constructive Resolution of Disputes) (2007) ZR 207 2. Kelvin Mwinga and Another v. The People - SCZ Appeal No. 10, 11 of 2017 3. Muvuma Kambanja Situna v. The People (1982) ZR 115 4. Joe Banda v. The People - SCZ Appeal No. 183 of 2013 5. James Kape v. the People (1977) ZR 192 6. Dorothy Mutale and Another v. The People (1997) ZR 51 7. Yotam Manda v. The People (1988 - 1989) ZR 129 8. Nkhata and 4 others v. Attorney General (1966) ZR 124 9. Humphrey Daka v. The People SCZ No 19 of 2016 10. Timothy Daka v. The People (1977) ZR 394 11. Machipisha Kombe v. The People (2009) ZR 282 12. Ilunga Kabala and John Masefu v. The People (1981) ZR 102 13. Kanyangav. The People - SCZ Appeal No. 145 of 2011. 14. Mwewa Murono v. The People (2004) ZR 207 Legislation referred to: 1. The Penal Code Chapter 87 of the Laws of Zambia - Section 294 (1) 2. The Criminal Procedure Code Chapter 88 of the Laws of Zambia - Section This is an appeal against conviction and sentence. The High Court tried and convicted the appellant of Aggravated Robbery contrary to Section 294(1) of the Penal Code (1) and sentenced him to 15 years imprisonment with hard labour with effect from 8th February, 2016. At trial, four prosecution witnesses were called. Their evidence was that Victor Mweene (PW1) was working as a taxi driver for Charles Phiri (PW3). On 6th January, 2016 around 20:00 hours, the appellant booked PWl’s taxi from Lusaka Intercity Bus Terminus to Kafue and back at the charge of K600. 00. The sum of KI50. 00 was to be refunded to PW1 by the appellant for fuel. They reached Kafue around 23:00hrs and the appellant left his small bag in the vehicle to go and look for his friend from whom he wanted to borrow some money. When they returned to Lusaka around 04:00hrs on 7th January, 2016 the appellant did not pay the charges as agreed. Around 05:00 hours near Zambia National Service Makeni Garrison, the appellant threatened PW1 with a pistol causing him to disembark from the car for fear of his life. He -J2- did not have the opportunity to carefully look at the gun. He watched the appellant drive the car away. Thereafter, he informed PW3 of what had transpired and they proceeded to Lusaka Central Police Station. Further evidence was that on 5th February, 2016 around 16:00 hours, PW2 who is PW3’s wife was with her husband when they saw the said vehicle being driven by the appellant within Lusaka. PW2 then went to the appellant and asked him for a lift to Misisi Compound. As she was inside the vehicle, she confirmed that the vehicle was her husband’s although it had no number plate displayed. The special features by which she identified it were; a mark on the bumper in front and a dent at the left back door. When she inquired as to whether the car belonged to the appellant, the appellant informed her that the car was his for he had bought it. She later disembarked and went back to her husband. On 8th February, the same year, the car was recovered from the appellant by PW3 near Down Town Shopping Mall within Lusaka. When the appellant asked why PW3 had switched off the engine and seized the car keys, PW3 informed him that the car he was driving was stolen and that it belonged to him. The appellant told PW3 that he had purchased the car. He did not disclose the name of the seller to PW3 but he insisted that they report the matter to the police. The appellant was later taken to the police by police officer Mbao (PW4) who was called by PW3. PW4 found two number plates marked BAC 736 in the boot, 2 discs, a road test certificate and a road tax disc with the same -J3- number plate. The appellant informed PW4 under warn and caution that he had bought the car but he failed to prove the alleged transaction to him. Consequently, the appellant was charged with aggravated robbery. The pistol allegedly used in the robbery was not recovered. The evidence of the appellant was conflicting with the prosecution evidence in the sense that the appellant alleged that PW1 sold the car to him and that he paid KI5, 000. 00 towards the agreed purchase price of K25, 000. 00 having obtained a loan of K5, 000 from his friend James Maona (DW2), while PW1 stated that the car was stolen from him at gun point. It is important to note the following evidence: The appellant’s explanation for the number plates found in the boot was that PW1 requested him to keep them for him saying they were for his (PWl’s) Toyota Corolla which was involved in an accident and that he would get them back on 10th February, 2016 after receiving the balance of the purchase price. He also testified that the sale agreement was in writing but the police got it from him. The appellant called DW2 who confirmed that he lent him K5, 000. 00 on 6th January, 2016 around 22:00hrs to be paid to PW1 for the car. The learned trial Judge found that PWl’s explanation did not raise any reasonable doubt that he stole the vehicle because if indeed PW1 had sold the car to him, he would not have been found with the number plates and discs for the same vehicle inside the boot instead of them being displayed on the car. This evidence was not subjected to cross - examination. She found no merit in PWl’s -J4- explanation that they were for another vehicle that was involved in an accident. It was also her finding that if the number plates and discs had nothing to do with the vehicle that was purportedly sold, there would have been no reason to keep them. That the appellant should have tendered evidence of the alleged written contract of sale. She further found that PW1 was not cross-examined on the sale agreement that he allegedly authored and signed with the accused. She opined that it was insufficient to merely allege that the accused person had bought the vehicle. She further found that the defence was raised as an afterthought. It was also her finding that the allegation by PW1 revealed that the accused was armed with an offensive weapon and not a firearm because no gun was found and tested by the police to establish that it was indeed a firearm as defined under the Firearms Act. She found PWl’s demeanour reliable and believed his evidence rather than that of the appellant. She therefore convicted the appellant of aggravated robbery. This appeal is based on three grounds couched as follows: 1. The learned trial Judge erred both in law and fact when she failed to properly analyze and evaluate the evidence on the record before convicting the appellant. 2. The learned trial judge erred in law and fact when she disregarded the explanation given by the appellant in his defence when such an explanation was reasonably possible. -J5- 3. In the alternative, to the above grounds, the trial Court misdirected itself when it failed to consider a less serious finding rather than that of guilty for the major offence of Aggravated Robbery. At the hearing of the appeal, both Counsel relied on their written heads of argument. We shall deal with grounds one and two together as they are interrelated. In support of ground one, Ms. Mukulwamutiyo first pointed out that the Judgment of the lower Court does not meet the requirements prescribed in Section 169 (1) of the Criminal Procedure Code that states thus: “The Judgment in every trial in any court shall, except as otherwise expressly provided by this Code, be prepared by the presiding officer of the court and shall contain the point or points for determination, the decision thereon and the reasons for the decision, and shall be dated and signed by the presiding officer in open court at the time of pronouncing it." She also referred to the case of The Minister of Home Affairs, The Attorney General v. Lee Habasonda (suing on his own behalf and on behalf of the Southern African Center for the Constructive Resolution of Disputes) (1) wherein the Supreme Court held as follows: “Every Judgment must reveal a review of the evidence, where applicable, a summary of the arguments and submissions, if made, findings of fact, the reasoning of -J6- the court on the facts and the application of the law and authorities if any, to the facts." She then argued that the decision of the lower court does not reflect an evaluation of the appellant’s credibility. She pointed out that in the Judgment on page 76 of the record of appeal lines 19 - 22 the Judge only considered the demeanour of PW1 as follows: “There is nothing about the demeanour ofPWl to doubt his testimony, and his evidence was not shaken in cross- examination. On that basis, I believe that the accused person threatened him with a gun, and then drove off with the vehicle." Ms. Mukulwamutiyo contended that it was unclear why the evidence of PW1 was preferred to that of the appellant and DW2. That there was need for the lower Court to have considered the totality of the evidence on record. She also referred us to the case of Kelvin Mwinga and Another v. The People (2> where it was held as follows: “The Court below did not make any findings as to the issues of credibility of witnesses apparent in the conflicting evidence of the witnesses. An appellate court cannot be turned into a fact finder. We would be unable to tell whether there were any findings of fact made on the demeanor of witnesses, including the accused persons." -J7- In light of the foregoing, she referred to the appellant’s use of the allegedly stolen motor vehicle in the public domain where he ran the risk of meeting the owner, his reaction when he encountered PW3 and his explanation to the court. She stated that the mere fact that he wanted the matter to be resolved through the police exonerates him from the charge of aggravated robbery. She pointed out that the appellant was arrested before the date when the sale of the car was supposed to be finalized and concluded that his conduct was that of an innocent person. Further, Ms. Mukulwamutiyo argued that had the lower Court treated the evidence of PW1 with caution, it would have warned itself of the dangers of accepting his evidence because he was a suspect witness. In support of this, she relied on the case of Muvuma Kambanja v. The People ,3) where the Supreme Court held as follows: “Judgment of a trial Court must show on its face that adequate consideration has been given to all relevant material that has been placed before it, otherwise an acquittal may result where it is not merited." Coming to ground two, Ms. Mukulwamutiyo submitted that the appellant’s defence was discounted because the trial Judge took the view that it did not raise any reasonable doubt. The trial Courts decision was based on the following: i. The appellant’s possession of the number plates and the discs for the motor vehicle in side the vehicle; ii. The appellant not being in possession of the motor vehicle sale agreement. -J8- Reference was made to pages 39 and 40 of the record of appeal where the appellant testified that he agreed to purchase the Motor Vehicle from PW1 at K25, 000.00. A deposit of K15, 000. 00 was made and that the documents for the sale transaction were supposed to be concluded once the balance was paid. She stated that the lower court therefore fell into error when it held that the explanation given by the appellant was an afterthought. She submitted that the law does not prescribe a particular stage at which a defence may be effectively asserted. To support this argument, she referred us to the case of Joe Banda v. The People (4) wherein the Supreme Court held as follows: “There is no obligation on the part of the defence to prove as false, every allegation in the prosecution case. Were this to be the case, it would reverse the golden thread that runs through our criminal justice system, namely, that the burden of proof rests through out on the prosecution to prove their case against the accused person beyond reasonable doubt. The accused person is entitled to bring up any issue relevant for his defence. And in our considered view, the appropriate time to do so is when it is his turn to give evidence in his defence. In the present case, it was while testifying for himself that the appellant indicated that he was wearing a black T-shirt on the material day. It was then up to the prosecution to discount the appellant’s claim, either through cross-examination or some other form of rebuttal.” -J9- On the above authority, it was argued that it was the duty of the prosecution to discount the appellant’s claim through cross- examination or some other form of rebuttal. Further that, the learned trial Judge stated at page J20 that it is not sufficient to merely allege that the accused person had bought the vehicle but that it is incumbent upon him to prove it in order for the defence to stand. She therefore submitted that this offends the law as sanctioned by the Supreme Court. That the appellant explained during the prosecution and prior to his arrest that he had purchased the motor vehicle and an explanation was given as to why he was found with the number plates in the car and discs not displayed on the motor vehicle. She added that the appellant’s testimony presented a multiplicity of suppositions of how he came into possession of the motor vehicle and as such, the inference that he stole the motor vehicle was not the only reasonable one. She referred to the case of James Kape v. The People (5) where it was held that when a court purports to draw an inference of guilt in a case of recent possession of stolen property, it is necessary to consider what other inferences might be drawn. That the lower Court was under an obligation to consider what other inferences could reasonably be drawn considering the circumstances of the case and that there is nothing to exclude an inference which is more favourable to the appellant. She also relied on the case of Dorothy Mutale and Another v. The People (6) and submitted that the evidence on record was not sufficient to warrant a conviction for aggravated robbery. -J10- In response, to ground one, Mrs. Mwanza submitted that the trial Court addressed all the evidence on record and provided the specific points that were suitable for determination. She indicated that the trial court stated thus: “The question that arises is whether this defence by the accused raises any reasonable doubt so that it can be said that he did not steal the vehicle, but bought it and he is therefore not guilty of the offence.” That lines 4-5 and 8 - 15 on J20 (page 73 of the record of appeal) clearly show the reasoning that was adopted by the lower Court in addressing the issue of reasonable doubt. On whether the Judgment of the lower Court meets the requirements set out in Section 169 of the Criminal Procedure Code, (2) she submitted that the Judgment contains points of law for determination, the decision and the reasons for the decision. She on this foundation urged us to dismiss this ground of appeal. She contended that the appellant could not substantiate his defence of having bought the vehicle from PW1. She in this respect referred us to line 15 of J20 where the lower Court stated thus: “It is therefore my finding that the defence that the accused person had bought the vehicle has not been successfully raised, and that it was just an afterthought.” On the subject of credibility, she argued that the same was properly analyzed by the learned trial judge at page 23 of the Judgment lines 19-22. She referred us to the case of Nkhata and 4 others v. Attorney General(8) where the Court held as follows: -Jll- “A trial judge sitting alone without a Jury can only be reversed on fact when it is positively demonstrated to the appellate court that... (d.) In so far as the judge has relied on manner and demeanour, there are other circumstances which indicate that the evidence of the witnesses which he accepted is not credible, as for instance, where those witnesses have on some collateral matter deliberately given an untrue answer.” In light of the aforementioned authority Mrs. Mwanza argued that there is nothing to show that PW1 was untruthful on any collateral matter. The lower Court evaluated the evidence of both parties and found that PWl’s demeanour was credible. She argued further that the evidence of the appellant having been armed with a firearm or offensive weapon and threatening PW1 with actual violence in order to retain the motor vehicle was addressed by the Court below on pages 22 to 24 of the Judgment where the Judge relied on the cases of Humphrey Daka v. The People (9) and Timothy Daka v. The People (10). Therefore counsel stated that the lower Court was on terrafirma (firm ground) when it found the appellant guilty of aggravated robbery contrary to Section 294 (1) of the Penal Code(1). Mrs. Mwanza’s response to ground two was that the appellant was guilty of the charge and his defence of having bought the car was an afterthought and without merit. She went on to state that the appellant failed to substantiate his defence of having bought the -J12- car from PW1 with any documentation. PW1 and PW3 were both not cross-examined about the purported sale. She argued further that the only inference that could be drawn from the evidence was that the appellant was guilty as charged and this was based on the odd coincidences and something more to justify the conviction. In aid of this argument, counsel relied on the case of Machipisha Kombe v. The People. (11) She stated that the odd coincidences are as follows: i. The appellant was found with a motor vehicle which was earlier reported stolen and he was identified by PW1 as the robber; ii. The number plates and discs of the car were found in the boot of the same car; and iii. The appellant had no documents to prove the sale or evidence to show that he knew PW1 prior to the date of the alleged robbery. In this regard, she relied on the case of Ilunga Kabala and John Masefu v. The People (12) wherein the Supreme Court held as follows: "... It is trite law that odd coincidences, if unexplained may be supporting evidence. An explanation which cannot reasonably be true is in this connection no explanation,99 Mrs. Mwanza submitted that it was not possible for someone to pay a huge sum of money without documenting it. And if the appellant had bought the car, the number plates would have been displayed. -J13- We have perused the judgment and ascertained that on pages J2 - J16 the learned trial Judge restated the charge levelled against the appellant and its particulars and went on to summarize the evidence adduced by the prosecution and the defence. She set out the undisputed facts in the second paragraph on page J16, the Judge stated that she had considered the evidence and identified the legal issue to be determined which was whether it had been proved beyond reasonable doubt that the accused person did commit the offence of aggravated robbery. She went on to state the applicable law from page J16 - J18. From page J18 up to J24, she made further findings clearly giving her reasons for such findings. The last paragraph shows the conclusion. We are therefore of the measured view that the judgment was in line with Section 169 of the Criminal Procedure Code (2) and the case of The Minster of Home Affairs. We agree with the respondent’s submission that the lower Court did indeed take into account the evidence on record in totality in arriving at its decision. However, the law as enunciated in the case of Mwewa Murono v. The People (14) and Joe Banda v. The People <4) is to the effect that the legal burden of proving every element of the offence charged, and consequently the guilt of the accused lies from beginning to end on the prosecution, and that the standard of proof must be beyond all reasonable doubt. In this case the record shows that the lower Court misdirected itself by shifting the burden of proof from the prosecution to the appellant for it was not -J 14- incumbent upon the appellant to prove his defence but merely to give a reasonable explanation of his case. The duty of the Court was to determine whether the appellant’s evidence was reasonable or whether the defence had discounted the appellant’s claim either through cross-examination or some other form of rebuttal. In any event and notwithstanding the Judges misdirection, the evidence on record shows that the prosecution had discredited the appellant’s evidence through cross-examination and through PW1 whose evidence was found to be credible by the court. This case is anchored on the evidence of PW1 and the appellant being found with the stolen motor vehicle. The trial court cannot be faulted for finding PWl’s account of what transpired credible because she also took into account the appellant’s explanation and the fact that the number plates and discs were found in the boot of the car that was stolen. The Judge rightly concluded that there was evidence supporting PWl’s evidence that he was robbed and that he did not sell the car. The lower court’s findings based on credibility of the witnesses are therefore upheld on the basis of Nkhata and 4 others v. The people (8) as there are no other circumstances indicating that PWl’s evidence was not credible. The fact that PW1 was credible entails that the danger of him falsely implicating the appellant was none existent. Since the appellant had during investigations explained to PW2, PW3 and the police that he had bought the car, we find the trial Judges finding that the defence was an -J 15- afterthought baseless. The finding is therefore set aside in accordance with the case of Kanyanga v. The People. (13) We are not persuaded by Miss Mukulwamutiyo’s arguments that the analysis that was employed by the lower court in rejecting the appellant’s explanation was flawed. The lower court’s findings were based on the record of evidence. Consequently, grounds one and two have failed. Coming to ground three, which is an alternative to grounds one and two, Ms. Mukulwamutiyo contended that the lower court misdirected itself when it failed to consider a less serious finding than that of guilty for the major offence of aggravated robbery. The charge of theft of motor vehicle would have sufficed and this was because the appellant allegedly acted alone and there was no evidence to support PWl’s allegation that he threatened to use violence in the alleged crime. No fire arm or offensive weapon was recovered and exhibited in the lower Court. To buttress this, she relied on the case of Yotam Manda v. The People <7) where the Supreme Court held 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 aggravated robbery or murder) the -J 16- court is bound to return a verdict on the less severe case, ” It was counsel’s prayer that we allow this appeal and substitute the conviction of aggravated robbery with the lesser offence of theft of motor vehicle. In arguing ground three, Mrs. Mwanza referred us to Section 294 (1) of the Penal Code and submitted that one can be charged with the offence of aggravated robbery even in instances where they act alone. The lower Court relied on the evidence that was adduced by PW1 to the effect that the appellant threatened to use violence against him in an attempt to steal the motor vehicle. Further that, the evidence on record excludes the adoption of a less severe inference against the appellant. She concluded by placing reliance on the case of Kanyanga v. The People (13) where the court held that: “We are satisfied that the findings in question were not perverse or made in the absence of any relevant evidence or upon misapprehension of facts or that they were findings which, on a proper view of the evidence, no trial court acting correctly could reasonably make. This is what we said in Wilson Zulu v, Avondale Housing Project, ” She went on to state that the trial Judge had the opportunity of seeing and hearing the witnesses and therefore she was better placed to make findings of fact pertaining to the guiltiness of the appellant. In the circumstances, she implored us to uphold the conviction and dismiss the appeal. -J17- Upon considering the submissions on the third ground, we are of the view that there was no need for the prosecution to produce the gun allegedly used by the appellant in court. It was sufficient that the trial Judge accepted PWl’s testimony that he threatened violence, notwithstanding that the trial Judge found that the appellant used an offensive weapon and not a firearm. We therefore uphold the lower court’s finding that the appellant did infact threaten to use violence against PW1 because it was based on the credibility of the witness. The trial Judge who had the opportunity to see the witnesses was in a better position than us to determine the issue of credibility. All things considered, we find no merit in the appeal and therefore dismiss it and uphold the conviction and sentence. C. K. MAKUNGU OURT OF APPEAL JUDGE /J./2HASHI M. M. KONDOLO S. C. COURT OF APPEAL JUDGE COURT OF APPEAL JUDGE -J 18-