Chibinga and Anor v People (Appeal 84 of 1986) [1987] ZMSC 78 (6 October 1987)

IN THE SUPREME COURT OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) Appeal No. 84 and 85 of 1936 HISTORY CHIBINGA BRUNO NGWELE v THE PEOPLE Appellants , Respondent CORAM! Ngulube, D. C. J., Gardner and Sakala, JJ. S., E. N. C. Muyovwe, Asst. Senior Legal Aid Counsel, for the 1st appellant , \ 6th October, 1987 R. N. Ngenda, Messrs Lisulo and Company, for the 2nd appellant K. C. Chanda, Senior State Advocate, for the respondent \ 'V k __________________________________________________________________ i----- A —----------------------------::--------------------------------- V JUDGMENT Gardner, J. S., delivered the judgment of the court. \ The appellantsrwere convicted of murdert the particulars'of the charge being that they on the 27th of September, 1985, at Monze jointly and whilst acting together did murder John Nkomo Moono. The prosecution evidence was to the effect that PW.1, a woman aged thirty-eight, met a man in a tavern and agreed to go home with him. On their way to the woman's home the evidence of PW.1 was that they met the first appellant who argued with her about going with the other man. Later when they proceeded on their way the first appellant returned with two other men, they ordered the witness to go away and she saw the three of them hoKl&g the man she was going home with and leading him towards the railway line. The following morning the witness said that she heard that a man had been found dead on the railway line, so she went there and saw the body of the man with whom she had beee the previous evening. Subsequently this witness said she was apprehended by the police and she identified the first appellant as being the man who had first approached her on the evening in question, and the second appellant as being one of the three men who had held the man and led him to the railway line. A further prosecution witness, PW.3, who was a business man, said that some three weeks after the incident he was at a tavern when he sav/ the first appellant brandishing a knife against 2/another.................... - another man's bneck. He remonstrated with the first appellant and the first appellant said "me I can ' cut into pieces as I do people at the railway line." This witness said that he • then realised that the first appellant must have/connected with the death of the man at been the railway line, and he consequently called for ttepolicemen in the tavern to arrest the man, and handed him over to the police. There was medical evidence that the body of the deceased had been found near the railway line with the head cut off and an arm cut off at the wrist, but the opinion of the doctor was that the injuries could not have been caused to the deceased by having been run ever by a train. On behalf of the first appellant Mrs. Muyovwe has argued four grounds of appeal. The first two grounds were argued together and were that the learned trial commissioner misdirected himself by finding that the first appellant was involved in the killing of the deceased, because the learned trial commissioner should have acceptedtfehe fact that the evidence of PW.1 needed corroboration. The argument as to the need for corroboration was that PW.1 did not immediately report what she knew to the police and in fact did not report at all until she was apprehended. It was argued that there was no evidence as to how long she was detained by the police before she gave evidence to them at all. It was further argued that this witness was the last one to see the deceased alive, that she was obviously connected in some way with the first appellant and may well have had an interest of her own to serve. In this respect the learned trial commissioner said that he refused to accept that the witness was an accomplice. He also dismissed the possibility that she had made an honest mistake in identifying the two appellants. The third ground of appeal was that the learned trial commissioner was wrong in concluding that the first appellant was not happy with the love relationship between the deceased and PW.1. In his judgment the learned trial commissioner discussed the possibility of there being such a relationship and found generally rthat there was no reason for any jealousy on the part of the first appellant. However, as was pointed out by Mr. Chanda on behalf of the State, there was certainly evidence from PW.1 that when she had proposed to go home with the man s she met in the bar, that is the deceased, the first appellant had got hold of her by the collar of her dress and asked her if she wanted / \ 3/the.......... 3 - the other man because he had money. In our view there was sufficient evidence for the learned trial commissioner to comment that the first appellant was not happy with the relationship between PW.1 and the deceased. The last ground of appeal related to the suggestion that an identification parade was unfairly conducted. This was not proceeded with because it was pointed out that PW.1 had indicated that she knew both appellants and there was no need for them to be identified at an identification parade. Mr. Chanda, in reply to the argumentsd put forward on behalf of the first appellant at first argued that the evidence of PW.1 did not require corroboration but changed that argument to agree with counsel for the first appellant that PW.1 could possibly have been a person with an interest of her own to serve. In that event Mr. Chanda argued that the identification and allegations against the first appellant were corroborated by the evidence of PW.3 as to what the first apellant said in the tavern three weeks after ther murder. On behalf of the second appellant Mr. Ngenda adopted the argument as to the reliability of PW.1 and added that '.there was no evidence except circumstantial evidence against the second appellant. He argued that the fact that the second appellant was said to have been leading the deceased towards the railway line could not lead to the inevitable inference that he took part in the killing of the deceased. In respect of the second appellant Mr. Chanda on behalf of the State conceded that there was no corroboration of PW.1's evidence as to his identification. As to the reliability of PW.1, we ourselves would take a point that was taken in the court below and that was that she had been drinking all afternoon at the tavern before she went home with the deceased. We therefore accept that PW.1 came within the class of a witness whose evidence is suspect and her evidence required corroboration. In so far as the learned trial commissioner found it did not require corroboration, this was a misdirection and the convictions can only stand, therefore, if we can apply the proviso to section 15(1) of the Supreme Court Act. We are quite satisfied that the evidence of PW.3 as to the statement made by the first appellant in the tavern three weeks after 4/the.................. - the murder was completely corroborative that he was involved in the murder at the railway line. In his case we consider that the evidence completely supports .^conviction, and we accordingly apply the proviso. The appeal of the first appellant against conviction is dismissed, There is no appeal against the mandatory death sentence. So far as the second appellant is concerned, Mr. Chanda has conceded that there is no corroborating the identification by PW.1, and it follows, therefore for, the reasons we have given that his appeal must succeed. The appeal of the second appellant is allowed, the conviction is quashed and the sentence is set aside. M. S. Ngulubt deputy chief justice B. T. Gardner SUPREME COURT JUDGE E. L. Sakala SUPREME COURT JUDGE