Clearson Chilengi and Anor v The people (Appeal No. 145,146/2021) [2023] ZMCA 294 (27 December 2023)

IN TAE COURT OF APPEAL OF ZAMBIA HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: Appeal No. 145,146/2021 CLEARSON CHILENGI 1 ST APPELLANT DENSON MUSONOYI 2ND APPELLANT AND THE PEOPLE RESPONDENT CORAM: Mchenga DJP, Makungu and Muzenga, JJA On 18th May 2022 and 27th December 2023 For the Appellants: Mrs. M. K. Liswaniso, Board Senior Legal Aid Counsel, Legal Aid For the Respondent: Mrs. Cynthia Prosecution Mungochi-Lungu, Authority State Advocate, National JUDGMENT MUZENGA JA delivered the Judgment of the Court. Cases referred to: 1. Simon Malambo Choka v. The People (1978) ZR 243 2. Kenmuir v. Hattingh (1974) ZR 162 (SC) 3. Musipe v. The People (1978) ZR 2 4. Guardic Kameya Kavwana v. The People -Appeal No. 84 of 2015 J2 5. Davison Matafwali and Another v. The People -CAZ Appeal No. 118, 119 of 2022 to: Legislation referred 1. The Penal Code, Chapter 2. The Criminal 87 of the Laws of Code, Chapter Zambia. 88 of the Laws of Procedure Zambia. 1.0 INTRODUCTION 1.1 The appellants were sentenced to death by Pengele, J, following a conviction of murder. 1.2 The particulars of the offence alleged that on a date unknown but between 11th August 2019 and 12th August 2019 at Mwinilunga in North Western Province of the Republic of Zambia, the appellants murdered one Philimon Nsawana Kalenga. 2.0 THE EVIDENCE BEFORE THE TRIAL COURT 2.1 The prosecution relied on the evidence of five prosecution witnesses to prove the case against the appellant. The gist of the prosecution evidence, in a nutshell, is that on 11th August 2019 around 17:00 hours, while on her way home from town, PWl, the deceased's aunty heard the deceased screaming and shouting for help, that some people J3 wanted to kill him. She followed where the voice was coming from and found the appellants and two other people beating the deceased. 2.2 She noticed that the deceased was tied on both legs and hands while the appellants and two others were beating him with sticks. She tried to intervene but the appellants told her to go away as they were disciplining the deceased. The deceased was found dead the following morning at the farm where he was last seen being beaten. PW2, the grandmother PWl's evidence. of the deceased, confirmed When she reached home, she narrated to her that she had found the deceased being beaten by the appellant. The post-mortem examination report revealed that the cause of the deceased's death was trauma and that his body and limbs had multiple bruises. 2.3 This marked the end of the prosecution case. The appellants were found with a case to answer and they were put on their defence. 3.0 DEFENCE 3.1 In their defence, the appellants opted to give sworn evidence and called no witnesses. Each of the appellants denied having taken part in beating or assaulting the deceased. They told the trial court that the deceased was beaten by the named two persons who were not J4 before the court. They added that the named persons were farm workers at the farm where the deceased a bag of was caught stealing maize. 3.2 This marked the end of the defence case. 4.0 FINDINGS AND DECISION OF THE TRIAL COURT 4.1 After careful consideration of the evidence before him, the learned trial judge found that the deceased was beaten at Mr. Chilengi's farm on 11th August 2019 and that his body was found at the said farm the following morning. The learned trial judge also found that the owner of the Chilengi farm was the father to the first appellant and that the two appellants were at the said farm on the 11th of August 2019. It was the trial judge's further finding that there were two other farm workers at the said farm on the said day. 4.2 He also found that the only direct evidence on the record was the testimony of PWl who saw the appellants assaulting the deceased. The trial court concluded that the prosecution had proved its case beyond reasonable doubt. The appellants were later sentenced to death. JS 5.0 GROUNDS OF APPEAL 5.1 Embittered with the conviction and sentence, the appellants filed three grounds of appeal couched as follows: {1) The trial court erred in law and in fact, when the court on the on the danger of convicting of PW1 who was an aunty to the deceased was of her own to serve. interest with a possible did not warn itself evidence a witness {2) The trial judge erred both in law and in fact when the of fact with regard to the was being assaulted. court did not make reason the deceased any finding herein {3) The trial judge erred in law and fact when the court of the charge of murder and convicted sentenced the appellants them to death. 6.0 THE APPELLANT'S ARGUMENTS 6.1 The gist of the appellants' argument in support of ground one of the appeal is that the trial court relied on the evidence of PW1, an aunty to the deceased without warning itself on the danger of convicting the accused on the evidence of a suspect witness. We were referred to the case of Simon Malambo Choka v. The People1 in which the Supreme Court guided that: with a possible "A witness should be treated extent that his evidence as if he were an accomplice to the or corroboration requires interest of his own to serve J6 more than a belief something simply on his demeanour evidence. that the danger that the accused implicated on the evidence of has been excluded the suspect That "something in the truth thereof and the plausibility more" must satisfy based of his the court and that it is safe to rely witness." is being falsely 6.2 It was learned counsel's contention to the that PW1 being a relative deceased and looking at the circumstances of this case fell into the category of a witness with a possible interest of her own to serve and may have had a motive to give false evidence against the appellants. According to counsel, it was not sufficient for the trial court to believe in the truthfulness of PW1 by observing her demeanour and the plausibility of her evidence but rather that the trial court should have satisfied itself that the danger that the appellants were being falsely implicated had been excluded and it was safe to rely on the evidence of PW1. 6.3 We were urged to allow ground one of the appeal and quash the murder conviction. 6.4 In support of the second ground of appeal, it was the learned counsel's contention that the trial court erred when it failed to make a finding of fact with regard to the reason the deceased was being assaulted. We J7 were urged to make a finding of fact with respect to this issue. In support of this, we were referred to the case of Kenmuir v. Hattingh2 where it was held that: of facts if the findings based on facts which were a common of a judge sitting alone is by court on the record and the appellate findings "An appeal from a decision way of rehearing can make the necessary were conclusions cause or on items of real evidence court is in as good a position questions which has the witness will not interfere made by the trial judge unless it is into error." has fallen of credibility not had the advantage are involved when the appellate as the trial court. Where court an appellate of seeing and hearing with the findings shown that he clearly of fact 6.5 In support of the last ground of appeal, it was learned counsel's contention that the deceased's presence at the 1st appellant's father's farm stealing maize was provocative and thus negated intent to kill. It was also contended that the only eyewitness did not state in her evidence who delivered the fatal blow that caused the death of the deceased. According to counsel, this case falls under the cases of mob instance justice and a sentence of death was too excessive. 6.6 We were urged to allow the appeal, set aside the conviction of murder and substitute it with that of manslaughter and give him an appropriate sentence. J8 7.0 RESPONDENT'S ARGUMENT 7 .1 On behalf of the respondent, learned counsel in responding to ground one of the appeal supported the conviction of the appellants and contended that even if PWl was related to the deceased, she testified according to the way the incident occurred or the way she perceived the incident. It was contended that the trial judge was on firm ground when he held that there was no evidence to show that PWl made up the story to implicate the appellants. We were referred to the case of Musipe v. The People3 where it was held that: is not whether the witness consideration "The critical does not in fact have an interest to serve, category circumstances false evidence." but whether into which he falls he is a witness or because of the case may have a motive to give or a purpose of his own of the who, because of the particular 7.2 In responding to the second ground of appeal, that it was submitted the appellants did not challenge PWl's direct evidence on the record that she saw them beating the deceased. According to learned counsel, it is absurd for the appellants to come on appeal and claim that no finding of fact was made by the trial court on why the ' . J9 appellants were beating the deceased. this We were urged to dismiss appeal. 7.3 In responding to the last ground of appeal, learned counsel for the respondent called into aid the provisions of Section 22 of the Penal Code Chapter 87 of the Laws of Zambia which provides that: "Where two or more persons form a common intention to prosecute one another, offence offence." deemed to have committed the with purpose an each of them is purpose in conjunction of such an unlawful and in the prosecution is committed of such purposes, 7.4 It was contended that it is clear from the evidence on the record that the appellants formed a common design for the purpose of unlawfully assaulting the deceased. 7.5 In summation learned counsel called upon us to take into consideration the trial judge's observation that the second appellant's demeanor was manifestly unstable and shaky making it apparent that he was not telling the truth. 7.6 We were urged to dismiss the appeal for want of merit and uphold the judgment court. of the trial 8.0 THE HEARING JlO 8.1 At the hearing of this appeal, the learned counsel for the appellant Mrs. Liswaniso informed the Court that she would rely on the filed heads of argument and learned counsel for the respondent informed the Court that the state would equally rely on the filed arguments. 9.0 CONSIDERATION AND DECISION OF THE COURT 9.1 We have carefully considered the evidence on record, the heads of argument filed by counsel and the judgment appealed against. As we see it, the question that the trial the court was faced with was whether offence the appellants committed was murder. 9.2 In ground one, the appellants take issue with the judgment of the lower court on the point that the trial court relied on the evidence of a suspect witness. From the evidence on the record, it is true that there is unquestionable between consanguinity PW1, PW2 and the deceased person. PW1 is the deceased's aunty while PW2 is the deceased's grandmother. 9.3 In the case of Guardic Kameya Kavwana v. The People4 the Supreme Court guided that: "There is no law which precludes deceased of the a blood relation for the prosecution. from testifying Evidence Jll of a blood relation rule out any element can be accepted of falsehood or bias." if cogent enough to 9.4 We hold the view that the trial court properly addressed its mind to the possibility of false implication and discounted it on the basis that there was no evidence on the record that they had a motive to falsely implicate the appellants. On this score, we find no merit in ground one. 9.5 With respect to ground two of the appeal, we note that from the evidence on the record, the deceased died as a result of the beating he sustained from the appellants and two other named individuals. We note that there is direct evidence on the record from PWl who saw the appellants and two others when they were assaulting the deceased. The post-mortem examination also confirmed died that the deceased from trauma as a result of the beatings. 9.6 We agree with Mrs. Liswaniso that indeed the trial court did not make a finding as to what exactly precipitated the assault. However, we opine that in the circumstances of this case, such a finding of fact was unimportant in determining whether· the offence is murder or manslaughter. denial We hold this view in the light of the appellants' of having assaulted the deceased. So whether or not the trial court J12 found that as a fact, what caused the beating would not have been helpful in the circumstances. We equally find no merit in ground two of this appeal. 9.7 With respect to ground three of the appeal, learned counsel argued in the alternative that the deceased's presence at the first appellant's father's farm was provocative to the appellants and that the appellants' actions were of a mob instance of justice. On the other hand, the respondent contended that the appellant and two others formed a common design for the purpose of unlawfully assaulting the deceased. 9.8 From the evidence on the record, it is clear that a group of 4 people all armed with sticks were determined to discipline the deceased for reasons well known to themselves. This is clearly in line with section 22 of the Criminal Procedure Code as the appellants had formed a common intention to prosecute an unlawful purpose. In our view, their actions show that they were determined to assault the deceased which resulted in death. The appellants acted jointly in assaulting the deceased and the severity of their actions discloses intent on their part to cause grievous harm or death. See the case of Davison Matafwali and Another v. The People5 • • I J J13 9.9 Death was a probable consequence of the assault and it does not matter that it was done by four persons. We cannot fault the trial judge in convicting the appellant and we find no merit in this ground of appeal. it. 9.10 All in all, we find no merit in this appeal and we accordingly dismiss 10.0 CONCLUSION 10.1 Having found no merit in the three grounds of appeal, we dismiss them. The convictions and sentences imposed on the appellants are upheld. . F. R. MCHENGA DEPUTY JUDGE PRESIDE C. K. MAKUN COURT OF APPEAL JUDGE K. MUZENGA COURT OF APPEAL JUDGE ·············· � ············ ··· ·······