Daniel Silwamba v People (Appeal No. 43/2004) [2006] ZMSC 40 (6 June 2006)

,- IN THE SUPREME COURT OF ZAMBIA AppealNo.43/2004 HOLDEN AT NDOLA (Criminal Jurisdiction) BETWEEN: DANIEL SILWAMBA Appellant AND THE PEOPLE I Respondent Coram: Chirwa, Chitengi JJS. Kaijalata, AJS on 7th Febrnary, 2006 and 6 th June, 2006. For the Appellant : Mr. F. B. Nanguzyambo, Deputy Director of Legal Aid For the Respondent: Mr. C. RF. Mchenga, Director of Public Prosecutions JUDGMENT Chitengi, JS, delivered the judgment of the court. Cases referred to: - 1. Mwambona V The People (1973) ZR 28 2. Zulu V The People (1977) ZR 151 3. Saluwema V The People (1965) ZR 4 4. Bwalya V The People (1975) ZR 227 Originally, the Appellant was jointly charged with three others with Murder contrary to Section 200 of the Penal Code Chapter 187 of the Laws of Zambia. .. - J2 - The particulars alleged that Daniel Silwamba, Lenadah Dason Nankala, Cletus Mulenga and Solo Muyinde, on 13th October, 2003 at Mbala in the Mbala District in the Northern Province of the Republic of Zambia did murder Joel Sinyangwe. At the close of the prosecution case the Appellant's co-accused were acquitted, the prosecution having failed to ground a prima fade case against them. However, the Appellant was found with a case to answer and after trial was found guilty of murder and sentenced to the ultimate penalty of death. The facts of this case, according to the prosecution, were that the deceased was a resident of N amukale village in Mb ala District. · On 5 th September 2003, the Appellant who lives in Pepula village, also in Mbala District, went to the deceased and told the deceased to go to the Appellant to get his money for a reed mat which the deceased sold to the Appellant. This conversation took place in the presen~_e of Moses Sinyangwe (PWl), the son of the deceased. The Appellant spent a night with the deceased at the deceased's house. The following day the Appellant returned to his village. The day after the Appellant had left, the deceased left for the Appellant's village to get his money from the Appellant. When leaving for Appellant's village the deceased carried with him a pair of red trousers (EX Pl) and a brown shirt (EX P2). The deceased told PWl that he will be with the Appellant for three days. The - J3 - deceased did not return after three days as he had indicated. After ten days PWl went to the Appellant to check for the deceased. The Appellant told him that the deceased had come and that after going to Chisanza to get some reeds he returned to the Appellant's house where they had some beer party; that after the beer party the deceased disappeared. The Appellant then asked PWl if the deceased had not returned to his village. PWl told the Appellant that the deceased had not returned home. When PWl told the Appellant that he had made a mistake by not informing them about the deceased's whereabouts, the Appellant got the deceased's clothes (EX Pl and P2) and the reeds (EX P3) from his house saying the deceased left the items in his house. After this conversation, PWl informed the other members of the village and together they apprehended the Appellant to take him and the deceased's things to the Police Station. The Appellant said he should not be taken to the Police Station because the deceased would be seen. Thereupon, PWl and others took the Appellant to the deceased's village. The search for the deceased was then mounted. Later, the body of the diseased was found in what PWl variously described as a well, stream and a trench at the end of the stream near the Appellant's home. According to PWl, when they were going in the direction of the place where the deceased's body was later found, the Appellant stopped them to go in that direction and .. - J4 - suggested that they go in a different direction. At the place where the deceased body was found, the deceased's green trousers (EX P4) was seen hanging on a tree but -according to PW2 the trousers was on the ground. According to PWl the deceased's body was found with wounds and the deceased's head was axed at the back. The skull and the tongue were removed. There was a wound from the mouth to the throat. On finding the deceased body, the matter was reported to the Police who came to the scene. D /Inspector Mutapa (PW2) went to the scene of the murder on 18th September, 2003 after getting a report. PW2 went to the scene with PWl and another son of the deceased. PW2 went to a stream called Kalo, about a kilometer from the village. PW2 found the body decomposed. Near the body was the trousers (EX P4). PW2 and the others rp.anaged to fish out the body. PW2 said it was difficulty to fish out the body. The body was taken to Pepula village. PW2 later interviewed the Appellant and his wife (now acquitted) about the deceased's death. The Appellant and his wife explained that the deceased paid them a visit; that it was not the first visit and that the deceased was their friend. When asked as to how the deceased left, the Appellant and his ,. - JS - wife said he left with Cletus Mulenga and Solo Muyembe (now acquitted). On this evidence the Appellant and his co-accused were arrested for murder. Under warn and caution the accused and his co-accused denied the charge. The deceased body was later, buried without a post mortem because the villagers failed to raise the KS0,000 fee required for conducting a postmortem. According to the Appellant, the deceased came to his house on 5th September, 2003 at 10:00 hours. At that time people were drinking b eer at his house. v.rhen the deceased came, he had s ome property tied in reeds which the deceased asked him to keep for him for fear tha t it could be s tolen as there was a beer p arty. The d eceased was an old man and the Appellant did not lmow him. The deceased joined the beer drinkin g. After I the beer drinking the decea sed wa s given a bed to sleep in the Appellant's sitting room. The following morning the deceased was not in the sitting room . Th e Appellant concluded tha t the deceased had left for his h om e . The Appellant kept the deceased in h is house on that d ay because the deceased was very dru.nk. When the deceased disappeared he left h is bundle of reeds behind. Two d ays later, a young man said he ,,wa s going to the deceased's village and the Appellant told the - 16 - young man to remind the deceased that he had forgotten his bundle of reeds. The young man came later to tell the Appellant that he did not find the deceased. The following day, the deceased's sons, among whom was PW!, came to enquire about the deceased. The Appellant told the deceased's children that the deceased spent a night at his house but in the morning he discovered that the deceased had disappeared and he thought that the deceased had gone back to his village. Thereupon, PWl and his group went to look for the deceased. Later, the deceased's body was found by hunters who had gone hunting with dogs and the villagers were informed. The body was decomposed. The relatives of the deceased were informed but PW 1 and his brothers did not come, instead they went to the Police Station. The Police came and enquired where the deceased had spent the night. The Appellant told the Police that the deceased spent the night in his house because he was drunk but that he did not know what time the deceased woke up and he thought that the deceased had gone back to his home. When he was cross-examined the Appellant said that he had never visited the deceased; that he was only told that the deceased lived in Namukale village. He did not visit the deceased on 5 th September, 2003 as PWl said. He did not tell the deceased to come to his house to collect money. He did not owe the deceased any money. When he heard of a dead - J7 - body being found near a stream he did not go to check whether the body could be that of the d eceased because he did not even know that the deceased had died. On the evidence of PWl that he tried to divert PWl and others from going in the direction where the deceased's body was later found, he said PW 1 was mad because PWl was not even present when they went to see the body . He said PWl came with the Police after word was sent to PWl that the deceased's body had been found. In answer to a question from the Court he said that when the deceased asked him to keep his reeds he did not introduce himself. He said that he knew the deceased as a dancer and that the deceased used to show off his dancing skills when he is drunk. After the burial of the deceased the Appellant was arrested for the murder of the deceased which he d ~nied. On this evidence the learned trial Judge found that n obody witnessed the murder of the deceased; but that the circumstances surrounding the d eceased's death suggest that the Appellant must have had a h and in the deceased's death. The learned trial Judge then observed that: - " He is the one who was last seen unth the deceased and this the Accused has admitted. Even if I agree with his - J8 - story that the deceased slept in the accused}s house after being drunk, the accused must account for the deceased's disappearance} whi.ch ended up in his death. From the evidence before me the only inf ere nee which can be drawn • would be that the accused should account for the deceased." The learned trial Judge then talked about presumptions and ended by saying: - "Can it be a matter of coincidence (sic) that the deceased spent a night in the accused's house, the deceased disappeared, the deceased's belonging are found with the accused and the deceased's body is discovered in a trench near the accused's house? This is too much of a coincidence. In the absence of any plausible explanation by the accused} the presumption will be that the accused was responsible for the death of Joel Sinyangwe ............. " After these remarks the learned trial Judge expres sed himself satisfied that the prosecution had proved the case a gainst the Appellant and convicted him of murder and s entenced him to death. Dissatisfied with the judgment of the court b elow, the Appellant now appeals to this court against his conviction. -19- The Appellant filed one ground of appeal. The ground is that the learned trial Judge erred at law in convicting the Appellant ,. for murder when the evidence against him was circumstantial and amenable to other inferences and not only that he must have had a hand in killing the deceased. Captain Nanguzyambo, the learned Director of Legal Aid, for the Appellant, submitted that nobody saw the Appellant kill the deceased: He pointed out that the only evidence linking the Appellant to the offence is that the deceased spent the last known night in the Appellant's house. The learned Director of Legal Aid said that ~erJ ·was no evidence of a quarrel between ,, the Appellant 'and the deceased and there was no motive for the murder ibf the deceased. He said that Appellant kept the deceased in his house because the deceased was very drunk and the deceased stayed for a night. He pointed out that the evidence shows that the Appellant used to brew beer at his house. The learned Director of Legal Aid then asked us to take judicial notice of the African traditional custom of housing strangers and destitutes when need arises. The learned Director of Legal Aid then submitted that the Appella_nt has explained how he came to posses the deceased's reeds and clothes. It was the submission of the learned Director of Legal Aids that the learned trial Judge should have approached the -110- evidence of PWl with caution because PW 1 as the son of the deceased had an interest to serve. He said PWl would like to ., implicate the Appellant in the death of his father. Further, the learned Director of Legal Aid submitted that the evidence is such that another person or persons could have killed the deceased and dumped his body near the Appellant's house. The learned Director of Legal Aid said that this is so because: - (a) The Appellant admitted keeping drunkards in his house before and these later departed safely; (b) Fully knowing that the deceased had slept in his house to everybody's knowledge and further that he was keeping the ~eceased's belonging, the Appellant could ., not kill the deceased; (c) There!/ was no motive for the Appellant to kill the deceased. The reply by the learned Director of Public Prosecutions to these submissions was that the evidence points to only to one inference of guilt on the part of the Appellant. The learned Director of Public Prosecutions pointed out that the Appellant invited the deceased; that ten days later the deceased does not show up; iliat the deceased's son went to enquire with _the Appellant; that the Appellant said the deceased left only after spending a night; that the Appellant discouraged PWl from going into the direction where the body was found; that the Appellant claimed the deceased was a stranger. - JI I - The learned Director of Public Prosecutions then submitted that the pieces of evidence he has highlighted show that the Appellant was responsible for the death of the deceased. On the evidence of PWl, the learned Director of Public Prosecutions submitted that being a relative does not simpliciter make one a witness with an interest to serve. He pointed out that there is no evidence that PWl was implicated in the murder of the deceased. The learned Director of Public Prosecutions then said that the evidence of PW 1 does not require to be treated with caution. Finally, the learned Director of Public Pros<;cution submitted that, although the learned trial "udge · in his Judgment used language which amounted t~ misdirection, we should apply the proviso and dismiss the appeal. The reply by the learned Director of Legal Aid to this was that the Appellant challenged· the evidence of PWl that the Appellant refused PWl and others to go in the direction where the body was. He pointed out that when the Appellant was cross-examined on this issue he said PW 1 was mad meaning that what PW.1 said was false. We have carefully considered the evidence that was before the ' learned trial Judge, the judgment appealed against and the submissions of counsel. -J12 - As both counsel rightly submitted, and the learned trial Judge observed in his judgment, there wa,s no direct evidence that the Appellant killed the deceased. The evidence against the Appellant is, therefore, circumstantial. The excerpts we have reproduced above from the learned trial Judge's judgment leave us in a grave doubt as to whether the learned trial Judge decided this case on circumstantial evidence or on presumptions. Indeeg, the learned Director of Public Prosecutions, in answer to a question by the court, properly and readily conceq.ed that the learned trial Judge's language in the judgment amounted to misdirection. , I The learned11trial Judge's judgment also shows to us that the learned trial Judge misapprehended most aspects of the evidence in particular the evidence of the Appellant. In fact, we are bound to say that the learned trial Judge chose to take a dim view of the Appellant's evidence. In the process the learned trial Judge misdirected himself on the evidence on the issue whether the Appellant discouraged PWl to go into the direction where the deceased's body was later found and on other i~sues. The learned trial Judge found that PWl 's evidence ~at the Appellant discouraged him and others to go in the direction where the body was later found was not challenged. In fact, as the learned Director of Legal Aid submitted, that evidence was challenged by the Appellant in -113- cross-examination. The Appellant called PW 1 mad for asserting that he discouraged PW 1 and other to go 1n the ,, direction where the deceased body was later found. The Appellant further said that PWl was not even present when the deceased's body was found. It is, therefore, not correct to say, as the learned trial Judge said, that the evidence that the Appellant discouraged PWl and others to go in the direction where the deceased's body was later found was not challenged. The learned trial Judge's finding on this issue was, therefore, a misdirection on the facts. The learned trial Judge W.so found as a fact that the deceased ,, body was found in a trench near the Appellant's house. This finding was .fl].so misdirection because it is based only on the evidence of PWl without considering the evidence of the Police Officer (PW2) who went to the scene to get- the body. According to PW2 the dec~ased body was found in a stream called Kalo about one kilometer from the village. Clearly, one kilometer cannot be near the Appellant's house. And there is no evidence that the Appellant's house is not in the village but on the banks of the stream. In view of what we have said above, it is clear to us that of the two material witness, PWl and the Appellant, the learned trial Judge chose to accept the evidence of PWl without proper evaluation of the evidence of PW 1, PW2 and the Appellant. - J14 - The learn.ed trial Judge's evaluation of the evidence was not balanced. The learned trial Judge mainly relied on the evidence of PWl who, as the learned Birector of Legal Aid submitted, was not an ordinary witness. The learned Director of Legal Aid characterized PW 1 as a witness with an interest to serve and whose evidence should be treated with caution. The learned Director of Public Prosecution argued that PWl was not a witness with an interest to serve because PW 1 was not implicated in the murder of the deceased and that there is no need to treat the evidence of PWl with caution. , f ' While we a?rcept the submission by the learned Director of Public Prosecutions that PWl is not a witness with an interest to serve, the evidence clearly shows that PWl is a ~tness with a possible bias. PWl was a close relative of the deceased. PWl is the son of the deceased. Clearly, PWl would like to have someone punished for the death of his father. The possibility of PWl embellishing his evidence cannot, therefore, be ruled out. Indeed, PWl said that his father's dead body was found near the Appellant's house. But the evidence of the Police Officer (PW2) is that the deceased's body was found ,. about a kilometer away. Further, PWl said the dead body of the deceased showed that it had been axed on the head and had other injuries. But the Police Officer (PW2) who retrieved - J15 - the body from the stream and whose duty it was to investigate the death of the deceased did not talk about the deceased's body having injuries, which according to PW 1 's evidence were very obvious. All PW2 said was that the body was decomposed. The judgment of the learned trial Judge does not show that the learned trial Judge regarded PWl as a witness with a possible bias and whose evidence should ,be treated with caution. The failure by the learned trial Judge to regard PWl '• who was a close relative of the deceased as a witness with a possible bias . was misf~irection: See Mwambona V The People<1J. Th~refore·, though for different reasons, we accept the submission by the learned Director of Legal Aid that the If • learned trial Judge should have approached the evidence of PWl with caution. The question now, is whether, if the learned trial Judge had directed himself correctly, he must envitably have convicted in any event. As we under~tand the evidence, the prosecution case rested on circumstantial evidence. It is competent for a court to convict on circumstantial evidence. But, as we said in Zulu V the ' People<2 J circumstantial evidence, by its very nature, has a weakness peculiar to it in that it is not direct proof of a matter - Jl 6 - in issue but rather proof of facts not in issue but relevant to the fact in issue and from which an inference of the fact in issue may be drawn. In the circumstances, we went on to warn that it is incumbent on the trial Judge that he should guard against drawing wrong inferences from the circumstantial evidence at his disposal before he can feel safe to convict. We concluded by saying that the Judge must be satisfied that the circumstantial evidence has taken the case out of the realm of conjuncture so that it attains such a degree of cogency which can permit only an inference of guilt. The facts from_ which the learned trial Judge drew an inference ;i' of guilt (wheth,er by- inference or presumption) were that the deceased spent a night at the Appellant's house; the ' deceased's belongings being found with the Appellant, and the ii • deceased's body being found in a trench near the Appellant's house. The learned trial Judge said that these were too much of coincidences. However, the matters listed by the learned trial Judge were not coincidences. It was known on the night the deceased disappeared that the deceased spent the night in the Appellant's house. The presence of the deceased's property i:q. the accused's house is well explained. The deceased went with his property to the Appellant's house. As we have already said the body of the deceased was not found near the Appellant's house. So the only evidence against the - Jl 7 - Appellant is that the Appellant was the last person to be seen with .the deceased before the deceased disappeared . .,, To the extent we have narrowed the evidence to the point that it tends to implicate the Appellant in the death of the deceased, can it be said that the only reasonable inference on the evidence is that it was the Appellant who killed the deceased? On the evidence, we are unable to come to that conclusion. We have gone through the record of evidence and we see that the Appellant told some pieces of lies here and there. And the learned trial Judge in his rejecting the Appellant's explanation and convicting the Appellant placed much weight on the fact that the Appellant told lies. But the ., fact that the accused has told lies does not relieve the I prosecutioh of their duty to prove the charge against the accused beyond all reasonable doubt. As the Court of Appeal said in Saluwema V The Peoplef3l lying by the accused may render conclusive reliable evidence against the accused but cannot add weight to discredible, conflicting or otherwise unreliable evidence. And as we said in Bwalya V The People<4J a man charged with an offence may well ·seek to exculpate himself on a dishonest basis even though he was not involved in the offence. Therefore, whether the accused tells lies or not the prosecution must prove the guilt of the accused beyond all reasonable doubt. - 118 - In the instant case, there was no reliable evidence against the Appellant which the Appellant's pieces of lies could have rendered conclusive. As we have said if the Appellant was guilty it was a matter of inference. Having considered the circumstantial evidence we cannot say, as the learned Director of Public Prosecutions submitted, that the only reasonable inference on the evidence is that the Appellant killed the deceased. We have unchallenged evidence that the deceased, who was an old man, was very drunk on that night. The possibility that the deceased got out of the Appellant's house in a drunken -! state to go and answer the call of nature and then lost his way I back to the house and wondered up to the stream and got // . drown in the stream is not exclude d. The finding of the deceased trousers near where his body was found suggests to us that the deceased could have gone to answer the call of nature. We say this because we do not know why any other person would undress the deceased and then kill him. In any case, there is no credible evidence that t he deceased died a violent death. Further, and as the learned Director of Legal Aid submitt~d, it is inconceivable that the Appellant having given the deceased shelter to the knowledge of other persons in the village would later kill the deceased without fear of ' being accused of causing the death of the deceased. If the deceased was killed at all, the possibility that he could have - Jl9 - been killed by other persons has also not excluded by the evidence. All in all, the learned trial Judge did not properly evaluate all the evidence that was before him resulting into serious misdirection on his part. The learned trial Judge's evaluation of the evidence was not balanced. The learned Director of Public Prosecutions asked us to apply the proviso. In the light of what we have said, this is not a case where we can apply the proviso to Section 15 ( 1) of the Supreme Court Act Chapter 25 of the Laws of Zambia. We cannot allow the conviction to stand. We allow the appeal and quash the conviction and sentence. ,,