Christopher Sankalimba v People (APPEAL NO. 159/2009) [2013] ZMSC 78 (3 December 2013)

IN THE SUPREME COURT OF ZAMBIA APPEAL NO. 159/2009 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: CHRISTOPHER SANKALIMBA APPELLANT AND THE PEOPLE RESPONDENT CORAM: Sakata, CJ, Chibesakunda, Mwanamwambwa, J. J. S. On the 1 st of June, 2010 and 3 rd December, 2013. For the Appellant: Mr K. Muzenga, Senior Legal Aid Counsel. For the Respondent: Mrs R. Khuzwayo, Deputy Chief State Advocate. JUD&MENT Mwanamwambwa, JS, delivered the Judgment of the Court. Cases referred to: 1. Muvuma Kambanja Situna v The People (1982) Z. R. 115. 2. Sammy Kambilila Ngati Mumba Chishimba Edward and Davy Musonda Chanda v The People,(2003) Z. R. p.100 3. Benson Phiri and Sanny Mwanza v. The People, ( 2002). Z. R. p.107. J2 AA. Lubinda V. The People (1973) Z. R. 43. BB. Nzala V. The People (1976) 221. When we heard this Appeal, Hon Justice E. L. Sakala, CJ, was part of the Court. He has since retired. Therefore, this is a majority Judgment. This is an appeal against conviction and sentence. On the 28 th of January, 2009, the Appellant was convicted on one count for Vandalism of public property, contrary to section 341D of the Penal Code, Cap 87 of the Laws of Zambia. He was sentenced to 10 years imprisonment with hard labour. The Particulars of the offence were that; the Appellant on the 21 st day of January, 2008, at Luanshya, in the Luanshya District of the Copperbelt Province of the Republic of Zambia, jointly and whilst acting together with another person unknown, without lawful excuse, did cause damage to 4 live cables, of 5 metres and 70 millimetres, valued at K255, 000.00, the property of the Zambia Electricity Supply Corporation, used for the transmission of Electricity. The case for the prosecution rested on the evidence of five witnesses. PW 1 was Edward Longwani, a Security Guard at Temple Baptist Mission Church. PW2 was Godfrey Kabwela, a shoe repairer and a member of the Community Crime Prevention Unit. PW3 was Kelvin Kamaloni, an Operations Technician at the Zambia Electricity Supply Corporation (hereinafter referred to as 'ZESCO') J3 while PW4 was Clement Hambulo, a Security Officer with ZESCO. PWS was Detective Sub-Inspector Johnes Musonda, from the Zambia Police. The facts of the case are that on the 21 st of January, 2008, around 02hrs in the morning, PW 1 was guarding the premises of Temple Baptist Mission Church. He was inside the Church building when he saw the Appellant with another person standing outside by the ZESCO pole. It was about 4-5 metres from where he was, to where the Appellant was standing. PWl saw the Appellant cut a cable that was coming from the transformer while his colleague held the cable. PWl was able to observe all this because there was moon light. After the cables were cut, the whole area was plunged into darkness. After seeing this, PWl went outside and blew the whistle. The Appellant and his colleague ran away. PWl had previously known the Appellant for about 8 years. Around 04 hrs the same morning, PW 1 followed the footsteps of the Appellant and his colleague. He passed through a bar called Namalampi and found the owner of the bar, Ms Namalampi. PWl told Namalampi about what had happened at the Church premises. Namalampi decided to call one of the Community Crime Prevention Unit members and one of them came. This was PW2. PWl narrated the incidence to PW2 and PW2 stated that he knew the Appellant. PWl left and went back to the Church premises. PW2 called the Police and 4 Police Officers came. PW2 knew one of the Police Officers as Musonda. PW2 led the Police to where J4 the Appellant resided and found him. When the Appellant came out of his house, he was apprehended by the Police. The Appellant then led the Police and PW2 to the house of Maite, who was with the Appellant when the cables were cut. They did not find him. The Appellant was detained at the Police Station. PWl and PW2 gave statements to the Police stating what they knew about the incidence. At the Police station, PWl was called to identify the Appellant and he identified the Appellant at Luanshya Police Station. PWS arrested the Appellant for vandalism. On the 11 th of August, 2008, the Learned trial Judge found the Appellant with a case to answer and put him on his defence. The Appellant's testimony was that on the 21 st of January, 2013, he left home with his wife around 09hours in the morning to meet the "Chairman". That they met the "Chairman" at the "Chairman's" bar. He stated that his wife bought some beer which the "Chairman" and himself drunk. That afterwards, the Chairman left and his wife and he went home. He stated that he went to sleep around 18hours. That he slept until the following morning. That around 06 hours, his child called him saying that there are some people who had come to see him. That when he went to the door leading to the outside, he found PWS and a member of the Community Crime Prevention Unit. That PWS searched the Appellant's bedroom and nothing suspicious was found. He testified that he was handcuffed and taken to Luanshya Central Police Station. JS He denied cutting the cable at Temple Baptist Mission Church and knowing PWl. After evaluating the evidence, the Learned trial Judge found that: "From the evidence, I find that it has been proved that a ZESCO Ltd cable was severed off the transformer as a result of which a large area in Mikonfwa was plunged into darkness. The cable and transformer were used to supply a large area of the public in Mikonfwa. The accused denies that he was involved in the cutting off of the cable asserting that at the time, he was sleeping with his wife in his house. The accused was however well known to PW1. I have no doubt that he rightly identified the Accused as the one who was actually cutting off the cable while his accomplice was holding it. I am satisfied that the Accused person is one of the two persons who vandalised the electricity cable in issue which is public property." The Appellant now appeals to this Court against the conviction. There are two grounds of Appeal in this matter. These are: 1. The Learned trial Judge erred in law and fact in convicting the Appellant on the evidence of a single identifying witness in the absence of corroboration or something more. 2. The Learned trial Judge misdirected himself for convicting the Appellant when the alibi raised by the Appellant was not investigated. In ground one, Mr Muzenga submitted that the offence was committed at about 02 hours. That the circumstances under which the offence was committed were poor. He argued that there was need for something more to support the evidence of PW 1. He stated J6 that PWl claimed that there was an identification parade, but that PWS denied holding an identification parade. Mrs Khuzwayo did not support the conviction. We have considered the evidence and submissions on this ground. Mr Muzenga argued that the Learned trial Judge erred by convicting the Appellant on the evidence of a single identifying witness without corroboration of the evidence of the single identifying witness. It is settled law that a Court may convict on the evidence of a single identifying witness, provided the dangers of an honest mistaken identity have been eliminated. In the case of Muvuma Kambanja Situna v The People (1), the appellant was convicted of one count of aggravated robbery and two counts of attempted murder. The trial court considered that the appellant had been properly identified at the parade by the single identifying witness despite allegations by the defence that the parade was improperly conducted and the inherent danger of an honest mistake in the circumstances. It was held that: "(l)The evidence of a single identifying witness must be tested and evaluated with the greatest care to exclude the dangers of an honest mistake; the witness should be subjected to searching questions and careful note taken of all the prevailing conditions and the basis upon which the witness claims to recognise the accused. (ii) If the opportunity for a positive and reliable identification is poor then it follows that the possibility of an honest mistake has not been ruled out unle~s there is some other connecting link between the accused and the offence which would render mistaken identification too much of a coincidence." J7 In another case of Sammy Kambilila Ngati Mumba Chishimba Edward and Davy Musonda Chanda v The People (2), it was similarly held that: "It is settled law that a court is competent to convict on a single identifying witness provided the possibility of an honest mistaken identity is eliminated." In another case of Benson Phiri and Sanny Mwanza v. The People (3), it was also held that: "The testimony of a single witness who knew the accused prior to the incident at issue is adequate to support conviction." In the case before us, PWl observed the Appellant and his accomplice from the Church Building for some time. He had ample opportunity and time within which to observe what was happening. He could see clearly as the evidence shows that there was moon light on that particular day. The Appellant was a person who PWl had known for a period of 8 years. This evidence falls within the ambit of the principles laid down in the authorities case cited above. There is no evidence on record that indicates that PWl and the Appellant had at any time crossed paths to warrant PWl fabricating a story against the Appellant. The evidence indicates that PWl was not present when PWS, in the presence of PW2, apprehended the Appellant. However, despite not being present J8 during the Appellant's apprehension, PWl was able to identify the Appellant at the Police Station. Further, the evidence on record shows that the Appellant led PWS and PW2 to the house of the Appellant's accomplice. Looking at all the above circumstances, we are satisfied that the dangers of an honest mistaken identity are eliminated by the evidence on record. The evidence on record is so strong and it completely eliminates the dangers of an honest mistaken identity. This ground of appeal is therefore dismissed. In ground two, Mr Muzenga submitted that the alibi raised by the Appellant was not investigated by the arresting officer. That the Learned trial Judge never made any reference to the alibi. We have considered the arguments and evidence on this ground. In the case of Lubinda V. The People (4), the brief facts were that the appellant was convicted of murder. The evidence against him consisted entirely of two girls who said they saw certain injuries being inflicted on the deceased but the injuries actually J9 found by the doctor on the deceased were different. The appellant pleaded alibi which had not been properly investigated by any responsible police officer. The trial judge did not take into account the discrepancy in the evidence as to the injuries on the deceased and dismissed the defence of alibi without giving any reasons. The Court held that: "In a proper case and on a proper direction it is open to any court to find that they believe witnesses and do not believe other witnesses. But where the whole evidence for the defence has been prejudiced by a dereliction of duty on the part of investigating officers the prosecution evidence should be so overwhelming as to offset the prejudice to justify conviction. In another case of Nzala V. The People (5), this Court held that: "It is trite law that where an accused person on apprehension or on arrest puts forward an alibi and gives the police detailed information as to the witnesses who could support that alibi it is the duty of the police to investigate it. That duty is certainly not discharged by the investigating officer simply interviewing people, taking no statements and remaining silent on the matter. Had counsel for the defence not asked certain questions of the investigating officer in cross examination the record would have been completely silent as to whether the alleged alibi had been investigated." In the case before us, the evidence on record was that the Appellant went to sleep around 18 hours the previous day and that he slept the whole night, up to morning. That he only left his JlO bedroom at around 06 hours in the morning when PWS went to his house . The Appellant denied cutting the ZESCO cables in issue. Clearly, the alibi raised by the Appellant was not investigated by the police. PWS stated that he did not investigate the alibi raised by the Appellant because the Appellant was seen by PWl. We do not believe the alibi raised by the Appellant that he slept from 18hours to 06 hours the next day. That translates into 12 hours or half a day of sleep. We feel this is extreme sleep and cannot reasonably be true. Further, on the authority of the Lubinda case, the evidence given by the prosecution was so overwhelming such that it offsets the prejudice which may have arisen from the dereliction of duty by the dealing officer. Therefore, despite the failure by the dealing officer to investigate the alibi, we find that the Appellant does not suffer any prejudice because the evidence laid against him was overwhelming. This evidence was to the effect that the Appellant was seen by PWl. PWl had known the Appellant for 8 years and therefore, the dangers of an honest mistaken identity could not arise. Further, there was moonlight on the day of the incidence thereby giving PWl an opportunity to observe the Jll Appellant. PW 1 identified the Appellant at the Police Station despite not been present at the time the Appellant was apprehended by PWS. The Appellant led PWS and PW2 to the house of his accomplice. We are therefore of the view that the prosecution proved their case beyond all reasonable doubt. This ground of ~ appeal fails also. Therefore, we find no merit 1n the whole appeal and we dismiss it. L. P. Chibesakunda AG/ CHIEF JUSTICE SUPREME COURT JUDGE