Alonzio Phiri v The People (APPEAL NO. 143/2021) [2024] ZMCA 129 (19 January 2024)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO. 143, 144/2021 HOLDEN AT KABWE (Criminal Jurisdiction) BETWEEN: ALONZIO PHIRI AND THE PEOPLE APPELLANT RESPONDENT CORAM: MCHENGA DJP, NGULUBE AND MUZENGA, JJA On 16th May, 2023 and l 9th January, 2024. For the Appellants: Ms. M. Nzala, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: Mr. S. Mainza, Senior State Advocate, National Prosecution Authority JUDGMENT NGULUBE JA, delivered the Judgment of the Court. Cases refern,d to: 1. Dorothy Mutale and Richard Phiri vs The People ( 19 77) SJ 2. Musonda and another vs The People (1976) Z. R. 218 3. Davies Mwape vs The People ( 1979) Z. R. 54 Legislation referred to: 1. 2. 3. 4. The Penal Code, Chapter 87 of the Laws of Zambia The Juvenile Act, Chapter 53 of the Laws of Zambia Children's Code, Act Number 12 of 2022 The Probation of Offenders Act, Chapter 93 of the Laws of Zambia 1.0 INTRODUCTION 1.1 The appellant (Alonzio Phiri) was charged on an information containing one count of the offence of Murder, contrary to Section 200 of the Penal Code, Chapter 87 of the Laws of Zambia. 1.2 The particulars being that the appellant, on 23 April, 2016 at Chipata in the Chipata District of the Eastern Province of the Republic of Zambia, murdered John Sakala. He denied the charge and a full trial was conducted. 2.0 EVIDENCE BEFORE THE LOWER COURT 2.1 The prosecution called nine witnesses in support of their case. 2.2 PWl's testimony was that her son, John Sakala (now deceased) left home on 23 April, 2016, at about 17:00 hours to take money to the barber shop in Gasho Compound. He did not return home. On 24 April, 2016, PWl was informed that her son's body had been found and she went to the old Lundazi Road where she identified the body. She noticed that there was blood coming out of the mouth and that the head was swollen. She later identified the bicycle that her son rode on the day he left home and was last seen alive. -J2- 2.3 PW2, Inspector Elijah Ndhlovu was the arresting officer. He attended a postmortem examination that was conducted on the body of John Sakala (the deceased) on 26 th April, 2016. He also received information that Jackson Nyirenda was seen riding the deceased's bicycle. 2.4 Jackson was subsequently summoned to the Police and when he was interviewed, he stated that on 24 April, 2016 between 07:00 hours and 08:00 hours, he was on his way to Malawi when he saw the appellant with a mountain bike. He stated that the appellant attacked him and ran away, leaving the bike. Jackson decided to get the bike and use if for a few days. 2.5 PW3 Elias Banda went to Bohart Bar on 23 April, 2016, where he was drinking beer. When the drinks ran out, he saw John (now deceased) the appellant and Levy leaving the bar together. The following morning, he learned of the death of John. He saw his body at the scene before it was collected by the Police. 2.6 PW7 apprehended the appellant at his house on 26 April, 2016 at 02:00 hours. He confessed to PW7 that he beat John because he wanted to get his mountain bike and his mobile phone. -J3- 2.7 In his defence, the appellant denied knowing Jackson Nyirenda who was found with the deceased's bicycle a few days after his death. 3.0 THE LOWER COURT'S DECISION 3.1 The lower Court found that there was no direct evidence to show who committed the offence. 3.2 However, the Court convicted the appellant for the Murder of John Sakala on the basis of the confession statement that he made to PW7. The appellant denied making the confession statement but the Court was convinced that the appellant made the confessions statement. 3.3 The Court made the following findings of facts prior to convicting the appellant- (1) That the appellant left the bar with the deceased on the material night; (2) That the appellant was seen with the deceased's bicycle the morning after John was found dead. (3) That the appellant made a confession to PW7 3.4 Accordingly, the Court found the appellant guilty as charged and he was sentenced to death. -J4- 4.0 THE APPEAL 4. 1 The appellant was dissatisfied with the decision of the lower court and appealed to this court advancing one ground of appeal couched as follows- l. The learned trial Judge erred tn law and fact when she did not treat the appellant as a Juventle when tmpostng sentence. 5.0 APPELLANT'S HEADS OF ARGUMENT IN SUPPORT OF THE APPEAL 5.1 In arguing the sole ground of appeal, it was submitted that the lower court made an order for age determination but did not make a finding on the said inquiry. It was argued that the lower court, by an order dated 12 December, 2017, subjected the appellant to age determination and a Report dated 13 December, 2017 was availed to the trial court. The same indicated that the appellant was aged 19 years plus and minus two (2). 5.2 It was argued that the lower court should have pronounced itself on the appellant's age prior to imposing sentence. According to Counsel, the age determination Report presented two scenarios and that the lower court should have adopted the one that was more favourable to the appellant. -JS- The case of Dorothy Mutale and Richard Phiri vs The People1 was referred to where the court guided that "Where two or more inferences are possible, it has always been a cardinal principle of criminal law that the court will adopt the one which is more favourable to the accused ff there is nothing in the case to exclude the inference." 5.3 It was submitted that the appellant's age at trial was possibly 17 years, thus making him a Juvenile, as defined under section 2 of the Juveniles Act. It was argued that the court should have imposed an appropriate sentence instead of imposing the death sentence, which was erroneous in the circumstances. 5.4 The court's attention was drawn to the case of Musonda and another vs The People2 where the Supreme Court set aside a sentence of fifteen years that was imposed on an appellant as the evidence on record was that at the time the offence was committed, he was a juvenile. We were urged to allow the appeal and set aside the death sentence imposed on the appellant. -JG- 6.0 RESPONDENT'S ARGUMENTS 6. 1 The respondent's counsel informed the court from the outset that he was in support of the conviction and sentence that were imposed on the appellant. reference was made to section l l B of the Juvenile Act, Chapter 53 of the Laws of Zambia which provides that- "Where a person, whether charged with an offence or not, is brought before any court otherwise than for the purpose of giving evidence, and it appears to the court that he is a juvenile, the court shall make due inquiry as to the age of that person, and for that purpose, shall take such evidence as may be forthcoming at the hearing of the case, but an order of Judgment of the court shall not be invalidated by any subsequent proof that the age of that person has not been correctly stated, to or estimated by the court, and the age presumed or declared by the court to be the age of the person so brought before it shall, for the purposes of this Act be deemed to be a juvenile.,, 6.2 The case of Davies Mwape vs The People3 was referred to where the court held that- "Where the court is unsure whether the accused person was a Juventle or an adult the safest course -J7- to take is to carry out a due inquiry in accordance with the Juvenile Act." 6.3 It was submitted that the evidence of Dr. M. L. Mbinga, the Senior Medical Superintendent at Chipata Central Hospital was that the appellant was born on 3 rd September, 1998 and that at the time of examination, to determine his age, he was 19 years and 3 months' old. After examination the appellant's approximate age was found to be 19 years plus and minus two years. 6.4 It was further submitted in the Subordinate Court when the appellant appeared before Honourable Moyo for the offence of assault occasioning Bodily Harm in 2016, the court received evidence relating to the appellant's age and he was said to have been 20 years old at the time. 6.5 Counsel submitted that the lower court was on firm ground when it sentenced the appellant to death as he had attained the age of nineteen years and was not a juvenile. The court was urged to dismiss the appeal for lack of merit 7.0 THE HEARING 7. 1 At the hearing of the appeal, the learned counsel for the appellant Ms Nzala submitted that she would rely on the -J8- grounds of appeal and heads of argument filed. Mr Mainza referred to a report relating to the appellant's age that was presented before the Subordinate Court in 2016, which indicated that the appellant was aged 20 years at the time. Mr Mainza contended that therefore, by the time the appellant was tried for the offence of murder in casu, he was not ajuvenile. 7.2 Ms Nzala, on the other hand maintained that the appellant should have been treated as a juvenile as he was most likely below the age of 1 7 years at the time the offence was committed. We were urged to allow the appeal in the interest of justice. 8.0 CONSIDERATION OF THE MATTER AND DECISION OF THE COURT 8.1 This appeal, in our view raises the issue of whether the lower court was on firm ground when it sentenced the appellant to death after convicting him of the offence of murder. The learned counsel for the appellant contends that the appellant was a juvenile at the time the offence was allegedly committed. -J9- 8.2 The question that this court must determine is whether after receipt of the Report regarding the appellant's age at the time the offence was committed, the court meted out the appropriate sentence, in the circumstances. 8.3 The report that was presented to the court by Dr. Mbinga Senior Medical Superintendent of Chipata Central Hospital was that a clinical examination was conducted using Gruelich and Pyle Atlas for skeletal maturation. According to the medical Superintendent, the clinical examination revealed that the appellant's approximate age at the time was 19 years plus and minus two years. 8 .4 We note that after the report on the appellant's age was presented to the court, the learned trial Judge did not pronounce herself on the age of the appellant in light of the report that was tendered before her. We are of the view that this was a misdirection on the part of the lower court as it proceeded to sentence the appellant to death without considering the fact that the report's finding were that the appellant was aged 19 years plus or minus two years. 8. 5 In light of the foregoing, we are of the view that the lower court misdirected itself when it sentenced the appellant to death as there is a possibility that he was a juvenile. -J10- 8.6 Section 79 of the Children's Code, Act Number 12 of 2022 provides for the methods of dealing with a child in conflict with the law. These include malting a probation order in respect of the child. 8. 7 Section 3 of the Probation of Offenders Act, Chapter 93 of the Laws of Zambia provides that- "3. (i) Where a court by or before which a person is convicted of an offence, not being an offence the sentence for which is.fixed, by law, is of the opinion that having regard to the youth, character antecedents, home surroundings, health or mental condition of the offender, or to the nature of the offence, or to any extenuating circumstances in which the offence was committed, it is expedient to do so, the court may, instead of sentencing him, make an order hereinafter in this Act referred to as a "probation order", requiring him to be under the supervision of a probation officer for a period to be specfJied in the order of not less than one year nor more than three years." 8.8 Having found that the lower court misdirected itself when it sentenced the appellant to death without pronouncing itself on his age after the age determination Report was tendered before it, we hereby set aside the Death Sentence that was imposed on the appellant. -Jll- 9.0 CONCLUSION' 9.1 The net result is that the appeal succeeds and we order that the appellant shall be on one year's probation under the supervision of the Probation Officer at Chipata. DEP' ~ I i. I P. C. M. NGULUBE COURT OF APPEAL JUDGE ~ COURT OF APPEAL JUDGE -J12-