Chamata v The People (Appeal No 188/2022) [2023] ZMCA 221 (29 August 2023)

IN THE COURT OF APPEAL OF ZAMBIA HOLDEN AT NDOLA (Criminal Jurisdiction) Appeal No 188/2022 BETWEEN: BERNEDICTO CHAMATA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Muzenga, Chembe JJA On 23rd August 2023 and 29th August 2023 For the Appellant: Mrs. L. Tembo-Tindi, Board Senior Legal Aid Counsel, Legal Aid For the Respondent: Mr. G. Zimba, Deputy Chief State Advocate Prosecution Authority National JUDGMENT MUZENGA JA delivered the Judgment of the Court. Cases referred to: 1. Wilson Mwenya v. The People, (1990-1992) ZR 24 2. Machobane v the People (1972) ZR 101 Legislation referred to: 1. The Penal Code Chapter 87 of the Laws of Zambia J2 1.0. INTRODUCTION. 1.1. The appellant was sentenced to death by Maka, J following a conviction of murder contrary to Section 200 of the Penal Code in the High Court. The particulars of the offence alleged that on 2nd February 2016, at Sinazongwe in the Southern Province of the Republic the of Zambia, acting appellant jointly and whilst with others unknown did murder Daniel Dubulika. 1.2. He has appealed against the conviction and sentence. 2.0. PROSECUTION EVIDENCE BEFORE THE TRIAL COURT 2.1. The appellant's conviction was secured by the evidence of five prosecution witnesses. The evidence implicating the appellant by PW1 was profiled who told the trial court that on 31st January and his 2016, the appellant friend Mundombe visited her stepfather Amos Siapubwe. that She narrated they had a brief chat with him and they left. 2.2. According to her, two days later, on 2nd February 2016, the two returned around 20:00 hours and asked her to take them to her grandfather's house (the deceased's house). She took them there and on arrival, she introduced them as people who were on a mission to buy goats. The deceased welcomed them and as he entered the kitchen to prepare where the two visitors would sleep, the appellant followed him and shot him. J3 2.3. PW1 went on to tell the trial court that the appellant then set some grass on fire and asked PW1 and Mundombe to jump over the fire twice. It was her continued evidence that he threatened that he would shoot her if she told anyone what she had witnessed. In fear for her life, she promised to keep quiet and the appellant proceeded to set the deceased's hut on fire. She narrated that after the deceased was shot, he fell down facing the floor in the kitchen. 2.4. They all left and PW1 went home and informed her mother what had transpired. On 3rd February the body and on 2016, the police picked up 10th February 2016, PW1 was apprehended and detained for 2 in custody days. It was during the time of detention that she narrated to the police what she witnessed. 2.5. PW2 confirmed having heard a gunshot and seeing the fire at the deceased's house on the fateful day but denied knowing anyone who may have fired the gun or set the deceased's house on fire. PW3, the son to the deceased told the trial court that he was the first person to reach the deceased's house after hearing a gunshot and seeing a fire at his father's house. He stated that when he reached the scene, he found his father lying in a pool of blood in the kitchen. He also told the trial court that he did not find anyone there. PW4's evidence was similar to PW2 and PW3 except that he told the trial court that the deceased had earlier hinted to J4 him that he had a land dispute with Amos Siapubwe (PWl's stepfather) and that both had hinted that one of them would not live longer. 2.6. The arresting officer, PWS told the trial court that he was assigned to investigate this matter and his investigat ion led him to Amos Siapubwe PW1's step father who told him to ask PWl what had transpired. He reached out to PW1 who told him all about the deceased's death. He narrated that he did not find any gun or empty cartridges. He stated that he finally arrested the appellant on 23rd July 2021 and under warn and caution the appellant denied the charge. 2. 7. Under cross-examination, he stated that PW1 was in police custody for two days to assist with the investigation and that during the postmortem examination, some pellets body. were found in the deceased's 2.8. This marked the close of the prosecution case. The appellant was found with a case to answer and put on his defence. 3.0. THE DEFENCE 3.1. The appellant opted to give evidence of oath and called no witnesses in support of his defence. He denied killing the deceased. He narrated that he was arrested on the allegation that he killed the deceased in 2016. He stated that on the day the deceased was killed, he was not around that area and that he was being falsely implicated. He confirmed knowing Mundombe and his girlfriend PW1 and that he used to visit him often. JS 3.2. Under cross-examination, he accepted having met Mundombe and PW1 briefly in 2016. He stated that PW1 was falsely implicating him to serve her boyfriend Mundombe who is said to have been at the deceased's house when he was shot dead. 3.3. This marked the end of the defence case. 4.0. FINDINGS AND DECISION OF THE TRIAL COURT 4.1. After evaluating the evidence, the learned trial Judge found as a fact that the deceased and one Amos Siapubwe had a long standing land dispute which was reported to PW4. PW4 tried to arbitrate the matter however failed as the two protagonists threatened trial to kill each other. The court further found that PW1 was the deceased's grandchild and that PW1 did not report the murder of the deceased to the police at the time it occurred. The trial court also found that PW1 was a suspect witness owing to the fact that she was detained by the police in conjunction with the murder case or an accomplice and thus her evidence needs to be corroborated. 4.2. After evaluating the evidence on record, the trial court found that the appellant was the one who shot and killed the deceased. Further, the trial court found that the prosecution had proved its case beyond a reasonable doubt and concluded that on the totality of the evidence the on the record appellants acted with malice aforethought when he caused the death of J6 the deceased. Accordingly, the appellant was convicted and sentenced to death. 5.0. GROUNDS OF APPEAL 5.1. Disconsolate with the High Court judgment, the appellant launched the present appeal against conviction and sentence, fronting two grounds structured as follows: 1) The learned trial court misdirected herself both in law and fact by accepting evidence of PW1 as credible where there was no sufficient corroborative evidence of the use of a firearm in the alleged murder within the meaning of the Firearms Act of the laws of Zambia. 2) The learned trial court erred both in law and fact by failing to find that there were odd coincidences arising from the conduct of PW1 who concealed the alleged murder of her grandfather. 6.0. THE APPELLANT'S ARGUMENTS 6.1. Learned counsel for the appellant in support of ground one of the appeal contended that the state failed to produce in court the pellets alleged to have been retrieved from the deceased's body as corroborative evidence of the use of the firearm. J7 6.2. The gist of the appellant's argument in support of ground two of the appeal was that the trial court erred in law and in fact, by relying on the evidence of PW1 who is a suspect witness in convicting the appellant. According to learned counsel, PW1's behaviour or conduct after witnessing the brutal murder of her grandfather indicates that she was involved in the murder. It was submitted that if indeed PW1 had nothing to do with the murder of the deceased, she could have reported the matter to either the village headman or the police station. 6.3. We were urged to allow the appeal and set aside the conviction it was the respondent's contention that despite PW1 being a witness. 7.0. RESPONDENT'S ARGUMENT 7 .1. In responding to ground one of the appeal, it was contended that even though the firearm used in the murder was never recovered and the pellets recovered from the body of the deceased were never produced in court, there is sufficient evidence on the record to support the use of a firearm and evidence of the death by firearm. 7 .2. It was contended that although PW1 is a witness with her own interest to serve having witnessed and concealed the death of the deceased and also having been detained in connection with the said death, her evidence J8 regarding the use of a firearm is supported by the postmortem and report also the evidence of PW2, PW3 and PW4. 7.3. In responding to ground two of the appeal, it was contended that even though PW1 was a witness with her own interest to serve there were odd coincidences on the record which supported her evidence. The first was the visit of the appellant who had a and Mundube to PWl's stepfather standing dispute with the deceased. The second one is the disappearance from the village immediately It was after the murder of the deceased. contended that there is sufficient evidence on the record which warranted the appellant's conviction. 7.4. We were urged to dismiss this appeal against conviction and sentence as it lacked merit. 8.0. HEARING OF THE APPEAL 8.1. At the hearing of the appeal, learned counsel for the appellant, Mr. Banda placed full reliance on the documents filed. Mr. On behalf of the state, Zimba informed the court that the state would equally rely on the heads of argument filed before the court. 9.0. CONSIDERATION AND DECISION OF THE COURT 9.1. We have carefully examined the evidence on the record, the arguments by both counsel and the judgment of the lower court. As we see it, the issue in this appeal is whether a conviction of this case can in the circumstances J9 be anchored on the evidence of PWl, witness with a possible to interest serve. 9.2. The evidence implicating the appellant was profiled by PW1 the eye witness and a granddaughter of the deceased. She never reported the incident to the police or the village leadership until 7 days later, when she was apprehended and detained for 2 days in connection with the murder. In the case of Wilson Mwenya v. The People1, the Apex Court stated that: At the outset we would like to indicate difficulty interest had been detained did not earlier evidence in holding that PW2 was a person with a possible of his own to serve for the simple reason that he with the same incident and to the police. His on report the incident corroboration. in connection that we have no therefore required 9.3. PW1, having been detained by the police and only implicating the appellant after detention, clearly falls in the category of witnesses with an interest to serve. The learned trial court rightly found her to be a witness with an interest to serve and that her evidence needed to be corroborated. However, the trial court fell into grave error when it failed to look for corroboration before accepting her evidence. 9.4. It is trite that where there is no corroboration, a court must warn itself of the dangers of relying on the uncorroborated evidence of a suspect witness. After doing so, the court must proceed further to look for J10 evidence of something more or what is referred to in the Machobane terms as "special and compelling grounds" (see the case of Machobane v. The People2). These are things or evidence, which, though not amounting to corroboration, rule out the dangers associated with relying on the uncorroborated evidence of a witness requiring corroboration. 9.5. There is clearly no corroboration or evidence of something more on the record and we agree with counsel for the appellant that there is no evidence on the record to corroborate PWl 's evidence. As such, her evidence cannot be relied on and must be discounted entirely. 9.6. What remains therefore is that, the deceased was shot dead on the 2nd February 2016. The person who shot him is unknown. There is no evidence connecting the appellant to the murder. We hold the view that the trial court erred when it convicted the appellant on the uncorroborated evidence of PWl. Had the learned trial court properly directed her mind she would definitely have reached the same conclusion as ours. We thus set aside her findings in this regard. We find merit in the appeal and we allow it. ' . . Jll 10.0. CONCLUSION 10.1. Having found merit in the appeal, we quash the conviction and set aside the sentence. We acquit the appellant and set him at liberty forthwith. •II I I C. F. R. MC N DEPUTY JUDGE PRES! ENT K. MUZENGA COURT OF APPEAL JUDGE Y CHEMBE COURT OF APPEAL JUDGE ·f'R - h£ I I I I 11I1111111� 1� I I 11 I I I I I I I I I I I I I I I I I