Alube Kapalu v The People [2022] ZMCA 195 (25 August 2022)

IN THE COURT OF APPEAL OF ZAMBIA CAZ No.83/2021 HOLDEN AT LUSAKA AND NDOLA Criminal Jurisdiction) BETWEEN: ALUBE KAPALU l5AU6202 HiL APPELLANT AND THE PEOPLE NCRI; YNALRE0iS RE S PONDENT CORAM: Mchenga DJP, Makungu and Sichinga, JJA ON: 15' February 2022, 23rd March 2022 and 25th August For the Appellant: M. Kapukutula, Legal Aid Counsel, Legal Aid Board For the Respondent: C. Soko, Deputy Chief State Advocate, National Prosecution Authority JUDGMENT Mchenga DJP, delivered the judgment of the court. Cases Referred to: 1. Champion Mannex Makwakwa v. The People [1973] Z. R. 2. iove Chipulu v. The People [1986] Z. R. 73 3. Choka v. The People [1978] Z. R. 243 J2 4. Yokonia Mwale v. The People SCZ Appeal No. 28 of 5. Kambarage Mpundu Kaunda v. The People [1990-1992] Z. R. 215 6. Nkhata and Four Others v. The Attorney-General of Zambia [1966] Z. R. 124 Legislation referred to: 1. The Penal Code, Chapter 87 of the Laws of Zambia 1. INTRODUCTION. 1.1. The appellant appeared before the High Court (Katanekwa, J.), charged with two offences. 1.2. In the first count, he was charged with the offence of murder contrary to section 200 of The Penal Code. The allegation was that on 2nd January 2016, he murdered Robert Seleyi. 1.3. The allegation in the second count, which was ccntrary to section 224(a) of the Penal Code, was that, on the same day, with intent to maim, he caused grievous harm to Fanny Luneta. 1.4. He denied the charges in both counts and the matter proceeded to trial. J3 1.5. At the end of the trial, he was found guilty of committing both offences. 1.6. He was condemned to suffer capital punishment for the murder, while he was sentenced to 10 years imprisonment, for the charge of causing grievous harm. 1.7. He has appealed against his conviction for both offences. 2. CASE BEFORE THE TRIAL JUDGE 2.1. On the 2nd of January 2016, at about 03:00 hours, Funny Luneta and her husband, Robert Seleyi, were in their house in Nduna Mulemu Village, in Zambezi, when 3 intruders entered. 2.2. The intruders were carrying a torch, which lit up the house. Fanny Luneta identified the appellant as one of them and as the person who was carrying a torch. 2.3. The torch was shone on her husband and two shots were fired from a gun, injuring him fatally. J4 2.4. As the intruders retreated, Fanny Luneta got hold of the appellant and called for help, but she let go of him, after he stabbed her in the neck with a knife. 2.5. Charity Seleyi, who lived in the neighbourhood, heard the gunshots and her mother's call for help. She then rushed to her parent's house. As she approached the entrance to the house, she saw three men running out and she was able to recognise the appellant in the moonlight. 2.6. The appellant denied having been with the people whc shot Robert Seleyi or stabbing Fanny Luneta. He said he only visited the house moments after the shooting, when he heard that robbers had killed Robert Seleyi. 2.7. He identified and named the persons he saw when he visited the house. 3. FINDNGS OF THE TRIAL JUDGE J5 3.1. The trial judge considered the possibility of Fanny Luneta and Charity Seleyi, having honestly but mistakenly identified the appellant. He ruled out that possibility after finding that the scene was sufficiently lit and that both witnesses had a good opportunity to identify him. 3.2. He rejected the appellant's story that he only went to the house after hearing the gunshots. 4. GROUNDS OF APPEAL AND ARGUMENTS IN SUPPORT AND AGAINST 4.1. The sole ground of appeal is that the case against the appellant was not proved beyond all reasonable doubt. 4.2. Mr. Kapukutula referred to the cases of Champion Mannex Makwakwa v The People' and Love Chipulu v The People and submitted that the identification evidence was unreliable because of the circumstances of the attack. J6 4.3. He also referred to the case of Choka v The People and submitted that the two witnesses were suspect, and their evidence required corroboration. 4.4. In response, Ms. Soko submitted that the identification evidence by the prosecution witnesses was credible despite the circumstances. She argued that the trial judge rightly found that the two witnesses were able to identify the appellant. 45. As regards the claim that they were suspect witnesses, she argued that there was no evidence that they had any motive to falsely implicate the appellant. She referred to the case of Yokonia Mwale v The People' in support of the proposition. 5. DECISION OF THE COURT 5.1. We will first deal with the argument that Fanny Luneta and Charity Seleyi were suspect witnesses. 5.2. As was rightly pointed out by Mr. Kapukutula, the evidence of a suspect witness requires corroboration. In the case of Choka v The People3, it was held that: J7 "A witness with a possible interest of his own to serve should be treated as if he were an accomplice to the extent that his evidence requires corroboration or something more than a belief in the truth thereof based simply on his demeanour and the plausibility of his evidence. That "something more" must satisfy the court that the danger that the accused is being falsely implicated has been excluded and that it is safe to rely on the evidence of the suspect witness." 5.3. However, as was pointed out by Ms. Soko, the case of Yokonia Mwale v The People' and the earlier case of Kambarage Mpundu Kaunda v. The People', both decided that depending on the circumstances of a case, a relative may be classified as a suspect witness. In such a case, the evidence of that witness requires corroboration. 5.4. The two cases also held that the mere fact that a witness is a relative, does not render that witness suspect. 5.5. Although the trial judge did not deal with the question whether Fanny Luneta and Charity Seleyi could be classified as suspect witnesses, we have J8 examined the evidence that was before him and are of the view that it could not have been the case. 5.6. They are the only two persons known to have witnessed what happened and there is no evidence whatsoever, of them giving evidence that could have been coloured or having a motive to falsely implicate the appellant. 5.7. It is our firm view that had the trial judge dealt with the issue, on a proper assessment of the evidence that was before him, he could not have found them to be suspect witnesses whose evidence required corroboration. 5.8. We will now deal with the argument that the circumstances of the identification rendered the identification evidence unreliable. 5.9. In the case of Nkhata and Four Others v. The Attorney-General of Zambia6, the following was pointed out on findings of fact by a trial court: "A trial judge sitting alone without a jury can only be reversed on questions of fact if (1) the judge erred in accepting evidence, or (2) the judge erred in assessing and evaluating the evidence by taking into account some matter which J9 he should have ignored or failing to take into account something which he should have considered, or (3) the judge did not take proper advantage of having seen and heard the witnesses, (4) external evidence demonstrates that the judge erred in assessing manner and demeanour of witnesses." 5.10. We have examined the evidence that was before the trial judge and we are satisfied that he was entitled to come to the conclusion that the two witnesses had a sufficient opportunity to identify the appellant. He took into account the circumstances of the attack and the opportunity that the witnesses had to observe their assailants. 5.11. We are also satisfied that in the circumstances of this case, the trial judge was entitled to ruling out the possibility of an honest but mistaken identification by both witnesses. The evidence points at them having an ample opportunity to identify the appellant given the lighting from the torch and the moon, respectively. 5.12. We find no basis for upsetting his finding as it is supported by the evidence. 6. VERDICT J10 6.1. Having rejected both arguments in support of the app ellant's sole ground of appeal, we find no merit in the appeal and we dismiss it. 6.2. We uphold the conviction and the sentence imposed on him. C. F. R. Mcheng DEPUTY JUDGE PRESIDENT CAJ C. K. Makungu COURT DF APPEAL JUDGE D. L. Y. 1Sichin.a, SC JUDGE COURT QY APPEAL i