Afred Sakutamba v The People (Appeal 66 of 2004) [2004] ZMSC 8 (3 November 2004)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT NDOLA (cid:9) APPEAL NO. 66/2004 (Criminal Jurisdiction) BETWEEN: ALFRED SAKUTAMBA (cid:9) Appellant And THE PEOPLE (cid:9) Respondent Coram: Chirwa, JS, Silomba, JS, and Munthali, Ag. JS on 2nd June 2004 and 3rd November 2004 For the Appellant: In Person For the Respondent: Mr. C. F. R. Mchenga, Chief State Advocate JUDGMENT Munthali, Ag. JS, delivered the judgment of the court. CASE REFERRED TO: SHULA V. THE PEOPLE, S. C. Z JUDGMENT NO. 6 OF 1996 The appellant ALFRED SAKUTAMBA was convicted of espionage contrary to Section 3 (d) of the State Security Act and was sentenced to 20 years imprisonment with hard labour. The particulars of the offence alleged that the appellant, on the 28th day of September, 2001 at Ndola in the Ndola (cid:9) (cid:9) District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together with other persons unknown, for a purpose prejudicial to the interest of the Republic of Zambia, did unlawfully cause damage to telecommunication cables valued at K482,000-00, the property of Zambia Railways and thereby caused disruption of communication services between Ndola and Kitwe. The facts of the case are these. PW1, a security guard with Zambia Railways Ltd was on 28th September, 2001 at around 11.00 hours alerted that some people were digging signal cables for his company. He rushed to the scene and found some men digging cables. On seeing him, they ran away leaving a bicycle behind. He collected the bicycle and took it to the camp. Later he went back to the scene and discovered that cables had been cut and a relay box dug out. When he went back to the camp he found that the appellant had been apprehended. PW3 testified that he received a message from Zambia Railways control centre in Kabwe to the effect that there were failures of signals at Kaniki. He received a second message that signal cables had been stolen. He went to the scene. At the scene he found that a portion of the underground cable had been dug out, including the termination box and core cables were cut. PW4, a security guard at Night Hawk Security Services testified that on 28th September, 2001 he, PW1 and a third person were patrolling at Kaniki. They found a group of people digging cables. On seeing them these men ran away. The appellant came back for the bicycle which was left behind. He identified the appellant as one of the people digging the cables. He apprehended the appellant. The appellant pleaded with him and apologised. He and the appellant went to the scene where cables were dug and a box removed. The appellant's evidence was that on 28h September, 2001 at 09.30 hours he came from the fields and he was on his way to Chifubu when the quarter-pin came off his bicycle. He picked a stone near the railway line to use it to fix the bicycle. While fixing the bicycle he saw three men from a distance. When they reached where he was, they charged him with the offence of being on the rail line and took away his bicycle. He was later taken to Sakanya police station. He denied committing any offence. It was on this evidence that the learned trial judge convicted the appellant. The appellant argued the appeal in person. The appellant submitted to the effect that the bicycle was his property; that he did not steal the cables and he only saw the box but not the cables at the camp. He denied committing the offence of espionage and that he was not taken to the scene where the cables were damaged. Mr. Mchenga, learned Chief State Advocate, supported the conviction. He submitted that from the evidence of PW1 and PW4 it was clear that the appellant was in a group of others who dug and cut communication cables. He summarized the evidence of PW1 who saw the people digging the cables and that when they ran away they left a bicycle behind. He linked this evidence with that of PW4 who apprehended the appellant as he went back to look for his bicycle. It was Mr Mchenga's submission that the trial judge believed the evidence of PW1 and PW4 and disbelieved that of the appellant and that no argument has been advanced to fault the position taken by the judge. We have considered what the appellant and the learned Chief State Advocate have said. We agree with the learned Chief State Advocate that the learned trial judge believed the mce of PW1 and PW4 and disbelieved that of the appellant on the issue of whether the appellant was one of the people found digging cables. Credibility was in issue. In the case of SHULA V. THE PEOPLE (1)we had this to say on credibility of witnesses:- The real conflict to be resolved was whether the appellant smote the deceased as explained by PW3 or if someone unknown injured her during a riotous fight as suggested by the appellant. The court below had the advantage of seeing and hearing the witnesses at first hand and we as an appellate court must not reverse a finding on credibility unless it is clearly demonstrated that the trial court fell into error or failed to take proper advantage of seeing and hearing the witnesses." Before the learned trial judge dismissed the appellant's ;tory, she indicated that she had the privilege to consider the lemeanour of the appellant. She also gave reasons why she preferred the story as given by PW1 and PW4. The evidence on record supports these findings. The appellant has not challenged the findings of the learned trial judge. All he said was that he did not commit any offence. For the reasons given we find no ground for interfering with the finding on credibility. This appeal has no merits. It is dismissed D. K. CHIRWA SUPREME COURT JUDGE rek— S. S. SILOMBA (cid:9) SUPREME COURT JUDGE AG. SUPREME COURT JUDGE S. S. K. MUNTHALI