Andrew Mumba and Ors v The People (APPEAL NO.90,91,92/2020) [2023] ZMCA 276 (15 November 2023)

IN THE COURT OF APPEAL OF ZAMBIA APPEAL NO.90,91,92/2020 HOLDEN AT LUSAKA AND NDOLA (Criminal Jurisdiction) BETWEEN: ANDREW MUMBA ALEX MWANANSHIKU MUYA KASABI AND THE PEOPLE 1 ST APPELLANT 2ND APPELLANT 3RD APPELLANT RESPONDENT Coram: Mchenga DJP, Majula and Muzenga, JJA On: 17 January 2023 and 15 November 2023 th th For the Appellant: M. K. Liswaniso, Senior Legal Aid Counsel, Legal Aid Board For the Respondent: M. Hakasenke, Senior State Advocate, National Prosecution Authority JUD GME N T Mchenga DJP, delivered the judgment of the court. Cases referred to: 1. Mutambo and Others v. The People [1965] Z. R. 15 2. David Zulu v. The People [1977] Z. R. 151 3. Malimawa v. The People [1968] Z. R. Legislation referred to: 1. The Penal Code, Chapter 87 of The Laws of Zambia INTRODUCTION J2 c11 The appellants appeared before the High Court (Limbani J.), charged with the offence of murder contrary to Section 200 of the Penal Code. c21 They all denied the charge and the matter proceeded to trial. [3J At the end of the trial, they were all found guilty as charged, and condemned to suffer capital punishment. [4J They have all appealed against their convictions. CASE BEFORE THE TRIAL JUDGE cs1 On 15th December 2019, around 19:40 hours, Petronella Bwalya was shot dead at her house in Kalao Village, in Chinsali. No one saw the person who shot her. (61 As preparations for the funeral were underway, Bernard Bwalya, her grandson, received from information persons including Edgar Mbulo, that two weeks prior to the shooting, the 1st appellant had brought the 3rd appellant, a traditional healer, to divine at his house. (71 He gathered information that following the divination ceremony, hostility developed between 1st appellant and Petronella Bwalya because the 3rd appellant identified her as being a witch. J3 [SJ Bernard Bwalya also gathered information that on the day his grandmother was shot, the 2nd appellant and Alfred Chiloshi, a suspect and a person who had threatened his grandmother with death, had spent a lot of time together. Alfred Chiloshi abandoned his homestead and fled soon after the shooting. [9J Armed with that information, Bernard Bwalya organised members of the Community Crime Prevention Unit and launched a search for the appellants. [lOJ Following their apprehension, they were placed in police custody. [llJ During their detention, the 2nd appellant volunteered to lead the police to where he had hidden a firearm that a subsequent ballistics examination found to be in good working order. [12J The 1st and 2nd appellant, who were Petronella Bwalya' s nephews, did not attend her funeral. In addition, the 2nd appellant also abandoned his homestead. [13J The three appellants all denied committing the offence. [14J In his defence, the 1st appellant denied having been part of the plot to murder Petronella Bwalya. He said J4 the 3rd appellant went to his house to administer herbal medicine on his son who was epileptic. [lSJ During that treatment session, the 3rd appellant did not name anyone as being responsible for his son's illness. [16J He maintained that even though he did not attend Petronella Bwalya's burial, he gathered for her funeral wake. c11J In the case of the 2nd appellant, his defence was that on the day Petronella Bwalya was shot, he was in the bush hunting birds with the gun he surrendered to the police. He used to hide it in the bush because it was homemade and unlicensed. c10J On his return, he found that Petronella Bwalya had died. A few days later he received information that his uncle had died in another village and thus he decided to go there. He denied abandoning his homestead. [19J The 3rd appellant's defence was that he went to treat the appellant's son in November 2019, and immediately returned to his village. He did not know anything about the death of Petronella Bwalya. FINDINGS OF THE TRIAL COURT JS [20J The trial Judge surmised that the case against the appellants was anchored on circumstantial evidence because no one saw them shoot Petronella Bwalya. [211 He accepted the evidence that Petronella Bwalya was killed on suspicion of practicing witchcraft. He was of the view that the suspicions were instigated by the 3rd appellant's divination, when he visited the appellant's homestead. [22) He went on to note that it was odd or strange that the 1 and 2 st nd appellants, who were related to Petronella Bwalya, did not attend her burial. He deduced that this was because their conscious was troubled over what they had done. [23J The trial Judge found that the recovery of the firearm which was hidden in the bush by the 2 appellant, was nd an odd coincidence which was incriminating. [24J In light of the above factors, the trial Judge concluded that the circumstantial evidence against the appellants was so cogent that the only inference that could be drawn on it was that the appellants murdered Petronella Bwalya. GROUNDS OF APPEAL AND ARGUMENTS J6 [2SJ Three grounds have been advanced in support of this appeal, the thrust of which is that an inference that the appellants murdered Petronella Bwalya is not the on the only inference that could have been drawn evidence that was before the trial Judge. [26J In a nutshell, Mrs. Liswaniso submitted that the bulk of the evidence on which the trial Judge drew the inference of guilt, was hearsay evidence. [27J She referred to the case of Mutambo and Others v. The People1 and submitted that while the trial Judge cannot be faulted for allowing Bernard Bwalya to recount how he went to look for the appellants after being told that they had accused his grandmother of being a witch, he should not have relied on that evidence to conclude that the allegations were true because the persons who made the allegations were not called to testify. [2BJ She also submitted that the firearm recovered from nd the 2 appellant was of no significance because the ballistics examination nor any other evidence, did not link it to the murder. J7 [29J Mrs. Liswaniso concluded with the submission that when the hearsay evidence is excluded, the standard set in the case on David Zulu v. The People2 for a conviction being anchored on circumstantial evidence was not met. [30J Mrs. Hakasenke, who appeared on behalf of the State did not and rightly so in our view, support the conviction. CONSIDERATION OF APPEAL AND COURT'S DECISION [31J In the case of Malimawa v. The People the court considered the evidential value of hearsay evidence. It was held that an out of court statement, by a third person who is not called as a witness, is not evidence of the facts that person states; unless the accused acknowledges the truth of what the third person said, such evidence must be disregarded altogether. [32J The apprehension of all the appellants was in the main informed by information given to Bernard Bwalya by persons who were not called as witnesses. [33J Those persons informed Bernard Bwa l ya that soon after st rd the 1 appellant brought the 3 appellant to di vine over his son's illness, his grandmother was accused of being a witch. JS [34J They also informed him that on the day his grandmother was shot, the 2nd appellant was seen in the company of one Alfred Chiloshi, a person who had threatened her with death. [3SJ The evidence we have just referred to in the last two preceding paragraphs, was all hearsay and should not have been relied on when deciding the liability of the appellants. [36J The only evidence that was before the trial Judge was that the 1st appellant brought the 3rd appellant to treat his sons and days later Petronella Bwalya was shot. The 1st and 2nd appellants who were her nephews did not attend her funeral. In addition, the 2nd appellant owned a firearm which he used to conceal in the bush and shifted from his house after the shooting. [37J It is our view that an inference that the appellants murdered Petronella Bwalya is not the only inference that can be drawn from this evidence. [38] The fact that the 2nd appellant owned a firearm that he used to conceal in the bush was of no evidential value because there was no evidence that linked it to the shooting. J9 [391 In any case, the 2nd appellant gave an explanation why he concealed the firearm in the bush. It was unregistered and in the circumstances, his explanation could reasonably have been true. (40] As regards the 1st and 2nd appellants' failure to attend their aunt's funeral, with no other cogent evidence incriminating them, that failure at the most, only raises suspicion and nothing more. [411 We agree with both Mrs. Liswaniso and Mrs. Hakasenke, that the threshold set in the case David Zulu v. The People for a conviction anchored on circumstantial evidence was not met. An inference that the appellants murdered Petronella Bwalya, is not the only inference that could have been drawn on the evidence that was before the trial Judge. [421 Consequently, we find the three appellants convictions to be unsafe. JlO VERDICT [43] We find merit in the sole ground of appeal and we allow it. [441 We set aside the convictions of all the three of them and quash their sentences. C. F. R. Mchenga DEPUTY JUDGE PRESIDENT ···············� ······ ······ ··· B. M. MaJula COURT OF APPEAL JUDGE ···� ·· ······· ··· ·········· K. Muzenga COURT OF APPEAL JUDGE