Clebble Lubinda v People (Appeal No. 67/2004) [2006] ZMCA 1 (1 August 2006)

lN THE SUPREME COURT OF ZAMBIA AppealNo.67/2004 HOLDEN AT LUSAKA (Criminal Jurisdiction) BETWEEN: CLEBBLE LUBINDA Appellant AND THE PEOPLE Respondent Coram: Chirwa, Chitengi, JJS and Kabalata, AJS on 2nd May, and 1st August, 2006. For the Appellant : Capt. F. B. Nanguzyambo, Director of Legal Aid Counsel For the Respondent: Mr. P. Mutale, Principal State Advocate JUDGMENT Chitengi, JS, delivered the judgment of the court. Cases referred to: - l. Lajabu V The People (1973) ZR74 2. Ali and Another V The People (1973) ZR 232. 3. Nachitumbi and Another V The People (1975) 285. 4. Chimbini V The People (1973) 191. 5. Bwalya V The People ( 1975) ZR 227. Works ref erred to: - 1. Cross and Tapper on Evidence 8th Edition by Colin Tapper at P797. - J2 - The Appellant with another man were originally charged with Aggravated Robbery contrary to Section 294(2) of the Penal Code Chapter 87 of the Laws of Zambia, a capital offence. The particulars alleged that Ephraim Phiri and Clebble Lubinda, on the 7 th day of July, 2001 at Lusaka in the Lusaka District of the Republic of Zambia jointly and whilst acting together and while armed with a firearm did steal from Abbas El Ali USD 13,000, 500 grams of gold, 1 passport and 4 brief cases together valued at K97 ,000,000.00 and at or immediately before or immediately after the time of the theft did use actual violence to the said Abbas El Ali in order to obtain the said property or overcome resistance to its being stolen. The Appellant's co-accused Ephraim Phiri escaped. The Appellant was tried and convicted of aggravated robbery contrary to Section 294(1) of the Penal Code and sentenced to 18 years imprisonment with hard labour. The fact that the offence of Aggravated Robbery was committed on the material date was not in issue at the trial. The evidence, as accepted by the learned trial Judge, revealed that PWl was robbed of the property particularized in the information valued at K97 Million at 10:00 hours. The critical issue during the trial was the identity of the persons who perpetrated this heinous crime. - J3 - For the purpose of determining this appeal, it will, therefore, be necessary to recount the evidence of identity in detail. The witnesses who deposed to the identity of the Appellant were the complainant Abbas El Ali (PWl) and Regina Mwanza (PW2). According to PWl, the Appellant came in her house with more than five others. PWl said she could not estimate the time of the robbery. PWl also testified that she saw the Appellant at an identification parade but she was scared to identify the Appellant because she thought that if she identified the Appellant but later was not convicted, the Appellant and the others who were not caught could do something to her. According to PW2, the Appellant was with seven others. When the Appellant and the others entered the house, they made PW2 lie down while they searched the house. The time was about 10:00 hours. PW2 identified the Appellant as the one who threatened to kill them if they (the robbers) did not find money. The incident took about 20 minutes. Later PW2 identified the Appellant at an identification parade. The Appellant denied being at the scene. According to the Appellant he was picked from his house on 4 th August, 2001 and taken to the Police Station. Later, he was taken to PW 1 's house where he joined, PWl, PWl's husband, PW2 and other persons. In the house, Constable Chola (PW4) asked him to - 14 - explain what he knew about the incident. He denied knowledge. He agreed that he was identified by PW2 at the identification parade but said that PW2 had already seen him at PW 1 's house where the Police took him. He said he complained about this and said that the identification parade was unfair. On this evidence, the learned trial Judge found that the Appellant was one of those persons who committed the robbery; that the Appellant was properly identified; that the evidence excludes the possibility of an honest mistake and that PWl only identified the Appellant in Court but feared to identify the Appellant at the identification parade. The learned trial Judge disbelieved the Appellant's story saying the Appellant did not struck her as a credible witness. The learned trial Judge dismissed the Appellant's defence as an after thought and a pack of lies designed to mislead the Court. The Appellant now appeals to this court. The Appellant filed two grounds of appeal. The first ground of appeal is that the learned trial Judge misdirected herself when she held that the Appellant's - JS - identification was adequate and satisfactory hence proceeded to convict. The second ground of appeal is that the learned trial Judge erred at law when she failed to consider the possibility of an honest mistake on the part of PW2 regard being bad to all the attendant circumstances of the case. Capt. Nanguzyambo filed written heads of argument which he augmented with brief oral submission. The oral submissions are in fact a repeat of the written heads of argument. On ground one Capt. Nanguzyambo submitted that this was a case of single identifying witness. He argued that PWl 's courtroom identification was valueless. For this proposition Capt Nanguzyambo referred to Cross and Tapper on Evidence IJth Edition at Page 797f1J as authority. It was the submission of Capt. Nanguzyambo that the identification by PW 1 was unreliable because PW 1 was too scared to recall anything; that PW 1 failed to identify the Appellant at an identification parade. About the evidence of PW2, Capt. N anguzyambo said that it was unreliable because PW2 was scared as a gun was pointed at her. We must say here that we find it starling that Capt. Nanguzyambo, as defence counsel, can submit that the - J6 - robbery was committed with people armed with a gun. Capt. Nanguzyambo submitted that PW2 did not give the description of the alleged robber's clothes and features by which the Appellant was later identified. He said that mere recognition is not enough. As authority for this proposition, Capt. N anguzyambo cited the case of Lajabu V The PeopleflJ. Finally, on ground one Capt. Nanguzyambo submitted that there was hardly any occasion during which PW2 could have reliably identified anybody. On ground two, Captain Nanguzyarnbo submitted that had the learned trial Judge properly analyzed the evidence she should have found that there was a possibility of an honest mistake on the part of PW2. It was Captain Nanguzyambo's submission that the identification parade was unfair. According to Capt. Nanguzyambo, the evidence shows that the Appellant was taken to PWl 's house before the parade. Capt. Nanguzyambo then referred to what he called contradictions in the evidence of PW4. As an example he said PW4 both denied and admitted going to the scene of the crime. Mr. Mutale, the learned Principal State Advocate, submitted that the robbery took place in broad daylight; that this was not a case of flltting glimpse; that PW2was with the intruders for about twenty minutes; and that her observation was therefore - J7 - reliable. He submitted that identifying evidence of a single witness requires support only where the observation was poor. He submitted that in this case, PW2 had a good opportunity to observe her assailants and identified the Appellant. Mr. Mutale ended by submitting that the evidence excludes the possibility of an honest mistake. In reply, Captain Nanguzyambo submitted that during the twenty minutes PW2 was not free; that PW2 was accosted by eight armed robbers and she was frightened. Captain Nanguzyambo emphasized that the possibility of an honest mistake was not considered. We have carefully considered the evidence, the submissions of counsel and the judgment appealed against. From the evidence, there can be not doubt, as the learned trial Judge found, that the offence of aggravated robbery was committed. The critical issue, as the learned trial Judge found and as counsel quite properly argued, is the identity of the persons who committed the robbery. The critical evidence of identity was the evidence of PW2. As Capt. Nanguzyamo rightly submitted PWl's evidence of identity in the court room was of no value. In the case of Ali and Another V The Peoplef2 J the Court of Appeal held that - J8 - although it 1s within the court's discretion to allow it in appropriate circumstances, a court room identification has little or no value, particularly where there is no satisfactory explanation for failure to hold an identification parade and there is no other evidence incriminating the Accused. In this case an identification parade was held but PW I failed to identify the Appellant at the parade. But at the time PW 1 was giving evidence she said she remembered that the Appellant w a s on the parade and that she was at the time too scared to identify the Appellant. She said that s he feared that if she identified the Appellant and the Appellant wa s later acquitted something could be done to her as the Appellant's friends were at large. Since PW 1 was prepared to come and give evidence in open court, giving her personal particulars and place of residence, we find PW 1 's explanation not persuasive. Indeed, the learned trial Judge did not in her judgment say that she placed any value on PWl's evidence of identity. As we have already said, the critical evidence of identity was that given by the PW2. The learned trial Judge said that she was struck by the credibility of PW2 and found that the possibility of an honest mistake was excluded. - J9 - We have in many cases laid down the proper approach to single witness identification cases, to which the instant case belongs. We have held in cases like Nachitumbi and Another V The Peoplef3J and Chimbini V The Peoplet4J that in cases of single witness identification, the honesty of the witness is not the issue. The issue is the reliability of the witness's observation so that the possibility of an honest mistake is ruled out. To dispel the possibility of an honest mistake, we said in Nachitumbif4J, that normally, although not invariably, there should be something other than the witness' identification to connect the Accused to the offence. In the case of Bwalya V The peoplel5J we said this about identification by a single witness: - "Usually in the case of an identification by a single witness the possibility of honest mistake can not be ruled out unless there is some connecting link between the Accused and the offence which would render a mistaken identification too much of a coincidence, or evidence such as distinctive features or an accurately fitting description on which a court might properly decide that it is safe to rely on the identification." In accepting the evidence of PW2 on the basis of PW2 's honesty and not reliability, the learned trial Judge clearly - JlO- misdirected herself in law. But that 1s not the end of the matter. The question that arises is, if the learned trial Judge properly directed herself, would inevitably have convicted. On the evidence we are satisfied that had the learned trial Judge correctly directed herself, would she have inevitably convicted? While we agree with Captain Nanguzyambo that PW2 did not give to the Police description of the Appellant and the clothes he was wearing, we are satisfied that on the evidence that was before the learned trial Judge, the Appellant was properly identified. The robbery took place in broad daylight; the robbery took about 20 minutes. We are satisfied that although the robbery was committed by armed men PW2 had the opportunity to identify the appellant. Indeed PW2 later identified the Appellant at an identification parade. We are satisfied on the evidence that the possibility of an honest mistake was excluded. Capt. Nanguzyambo, for the Appellant, talked about the unfairness of the parade and said that the Appellant was taken to the complainant' house where PW2 saw him before the identification parade. The learned trial Judge who saw the witnesses give evidence considered these matters and disbelieved the Appellant who she found not credible as a witness. We have no basis upon which we can interfere with learned trial Judges finding based on credibility. - 111 - For the reasons we have given, we dis1niss this appeal and affirm the Appellant's conviction and senten ce. On the evidence the Appellant was properly convicted . ............ i~ ..................... . D. K. CHIRWA SUPREME COURT JUDGE SUPREME COURT JUDGE ENGi Pf} SUPREME COURT JUDGE BALATA